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Charles Ponzi

Charles Ponzi

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About Me

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    1956-12-19
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    Charles Ponzi sent me.

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  • Charles Ponzi created a new topic ' ATO Duty of Care Negligence' in the forum.
    www.austlii.edu.au/cgi-bin/viewdoc/au/ca...h/FCA/2019/1076.html

    TAXATION – interlocutory application – application for leave to amend pleadings to include claims in negligence arising from the Commissioner of Taxation’s performance of his duties or responsibilities under ss 8AAZLF(1) and 8AAZLH(2) of the Taxation Administration Act 1953 (Cth) regarding refunds of RBA surpluses – consideration of statutory duties and history and purpose of ss 8AAZLF and 8AAZLH of the Taxation Administration Act 1953 (Cth) – consideration of whether it was reasonably arguable that the Commissioner of Taxation owed the applicant a common law duty of care – consideration of whether the proposed claim in negligence raised a reasonably arguable case that the applicant suffered loss or damage arising from the alleged breach of duty by the Commissioner of Taxation – where Commissioner of Taxation disputes any common law duty of care exists.

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    1 month ago
  • Charles Ponzi created a new topic ' Inflammable Cladding Bailleau Thwaites Opie' in the forum.
    Dodgy builders could be 'immune to prosecution' in cladding crisis
    Clay Lucas
    By Clay Lucas
    July 17, 2019 — 12.09pm
    Apartment owners still face huge challenges pursuing builders for the costs of removing flammable cladding, despite changes proposed by the Andrews government to tackle the crisis.

    The Andrews government is looking into legal reforms that would allow the state to pursue builders for costs on behalf of owners, alongside its $600 million fund to remove flammable cladding from high-risk buildings across Melbourne.


    Victorian government announces fund to fix cladding crisis

    Victorian government announces fund to fix cladding crisis



    The Victorian government has announced a $600 million fund to repair residential buildings deemed a serious risk.

    In a report written by former premier Ted Baillieu and former deputy premier John Thwaites identifying the buildings in urgent need of repair, the government was encouraged to “seek to offset the costs of the rectification program from wrongdoers”.

    The ex-MPs said owners who wanted the state to pay to swiftly repair their building might be asked as a condition of getting funding to “transfer their legal recovery rights to the state” to pursue.

    On Wednesday, speaking from a Fire Safety and Cladding Summit in Melbourne, building expert Phil Dwyer said there was “very little chance” the government would attempt to change laws so they could pursue builders and developers responsible for problem buildings.

    “They haven’t done it in the past, so to now go out and say ‘hey we are going to do what we should have done 20 years ago’ is going to make them look stupid,” he said.
    South Yarra residents Jennifer and Kevin Opie live in a building with flammable cladding. The government has told them they will help pay for their building repairs.

    South Yarra residents Jennifer and Kevin Opie live in a building with flammable cladding. The government has told them they will help pay for their building repairs. Credit:Simon Schluter

    He said it was likely Planning Minister Richard Wynne and his Victorian Building Authority would “find some reason not to pursue and then the taxpayer will simply foot the bill for the whole repair [program]”.

    Mr Dwyer asked why developers appeared “immune to prosecution” when so often cost-cutting had driven the widespread use of unsuitable materials.

    “The developers are the ones that sit in an office and say ‘We have to shave $10 million off this job’, and that’s what leads directly to cost cutting,” he said.

    There are at least 481 extreme or high-risk buildings around the state with cladding that needs to be removed. But with an audit of cladding not yet complete this could rise dramatically – taking the bill to fix them far beyond the government’s initial $600 million in funding.

    Premier Daniel Andrews said on Tuesday that the government was looking “at all possible steps to get as much money out of those wrongdoers as possible”.

    “So many of these apartment buildings have been built by phoenix companies, and almost as the last nail is driven in, the company folds up and there's no one to go after,” Mr Andrews said.

    He said there needed to be discussion of changing company laws at a national level to make it harder to simply dissolve companies in this way.

    Melbourne University construction law lecturer Matthew Bell said the cladding taskforce’s proposal, for the government to take on the rights of owners to pursue builders, could likely be achieved via straightforward legal agreements.
    The Neo building caught fire in January this year.

    The Neo building caught fire in January this year.

    However, Opposition planning spokesman Tim Smith said the Andrews government's response to rogue builders to date had lacked teeth, and the best example of this was the developers who illegally demolished Carlton's Corkman Irish Pub in 2016.

    "As of today, the two cowboys who knocked over the Corkman, who also built an apartment block in Hawthorn that is [covered in flammable cladding] – those characters can still practice in the state of Victoria. So that shows you how much effort they’ve put into prosecuting rogue builders,’’ Mr Smith said.

    There is a meeting of the nation’s building ministers in Sydney on Thursday, at which the issue of cladding and who will pay for its removal will be the main topic.
    Related Article
    Flammable cladding fuelled London's Grenfell tower blaze in 2017, in which 72 people died.
    Combustible cladding crisis
    Insurers hit back at government as building dispute deepens

    The government on Tuesday established a new agency, Cladding Safety Victoria, which will work with homeowners to help get buildings covered in flammable cladding repaired.

    The move for the state to partly fund repairs to private buildings follows the state government’s alteration of rules last week in Victoria to avert a crisis in insurance coverage for building surveyors.

    Almost no insurers were willing to offer coverage to surveyors in Victoria because of issues around cladding – meaning most surveyors stood to lose everything in the event of one of their buildings catching on fire or needing significant repairs.

    Building surveyors and inspectors in Victoria had needed professional indemnity insurance without any exclusions, but the government created a provision allowing building surveyors and inspectors to be covered by personal indemnity insurance with an exclusion for non-compliant and high-risk cladding.

    Some planners questioned the wisdom of allowing this exclusion.

    The move to partly fund building repairs follows a plan released by the government last year allowing residents with cladding problems to pay off their repair bill via a low-cost loan attached to their council rates.

    But not one single rectification agreement was ever signed.


    Combustible cladding crisis

    Clay Lucas
    Clay Lucas


    Clay Lucas is a senior reporter for The Age. Clay has worked at The Age since 2005, covering urban affairs, transport, state politics, local government and workplace relations for The Age and Sunday Age.

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    1 month ago
  • Charles Ponzi created a new topic ' Notary Case' in the forum.
    CaselawReferencedSharpe v. Drew, 9 Ind. 266

    Supreme Court of Indiana

    June 6, 1857, Filed

    No Number in Original
    Reporter
    9 Ind. 266 * | 1857 Ind. LEXIS 571 **

    Sharpe v Drew.

    Prior History:

    [**1] From the Vanderburgh Circuit Court.


    Disposition:

    The judgment is affirmed, with 5 per cent . damages and costs.


    Core Terms

    presentment, notice of protest, post-office, protest, notified, drawee, notary, notary's certificate, personal notice, demanded, indorser, parties, resides, lived, mile

    Case Summary

    Procedural Posture

    Appellee indorsee brought a suit on a bill of exchange against appellant indorser. The indorsee won a judgment in a municipal proceeding. The indorser appealed to the Vanderburgh Circuit Court (Indiana), which, after a trial, also rendered judgment for the indorsee. The indorser sought review.


    Overview

    On appeal, the indorser argued that (1) there was insufficient evidence that the bill had been presented to the drawee for acceptance, and (2) the notice of protest was insufficient. The court disagreed. The evidence of presentment consisted of a notarized certificate of protest which showed that the draft had been presented to the drawee, acceptance was demanded of the drawee , and the drawee refused. Pursuant to Ind. Rev. Stat. ch. 2, p. 91, the notarized certificate was evidence of the facts it contained; therefore, the evidence of presentment was sufficient. Further, the record showed that notice of protest was mailed to the indorsee at his out-of-town address. Because the indorsee lived out of town, personal notice was not required. Mailing notice to his address satisfied the requirement of reasonable diligence and good faith efforts to notify the indorsee of the protest.


    Outcome

    The court affirmed judgment .


    Hide sectionLexisNexis® Headnotes


    Contracts Law > Types of Commercial Transactions > Negotiable Instruments > General Overview

    HN1 Presentment of a bill of exchange for acceptance should be to the drawee himself, if he can be found. If to an agent or other person authorized to accept, the fact should appear. More like this Headnote
    Shepardize - Narrow by this Headnote (0)

    Evidence > Topic Summary ReportAuthentication > Self-Authentication

    View more legal topics

    HN2 Self-Authentication
    Notarial certificates are evidence of the facts therein stated. Ind. Rev. Stat. ch. 2, p. 91. More like this Headnote
    Shepardize - Narrow by this Headnote (0)

    Business & Corporate Compliance > ... > Negotiable Instruments > Dishonor & Presentment > Protests

    View more legal topics

    HN3 Protests
    The law requires only reasonable diligence and efforts, made in good faith, to notify the parties to a bill of its protest. Where the parties live in the same city, the practice of notaries is to give personal notice. Even there, personal notice is required only where the transaction to be notified occurred in the same place in which the party to be notified resides. But where the party whose liability is to be fixed by notice, resides out of town, it is different. More like this Headnote
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    Hide sectionHeadnotes/Summary


    Headnotes

    Bills of Exchange -- Presentment -- Notice. -- Draft drawn by Wetmore on Peters, in favor of Sharpe, who indorsed it to Drew. Peters lived in Troy, N. Y.; the other parties in Evansville, Ind. The draft was presented by a notary who certified "that on etc., I did present the annexed draft of T. C. Wetmore on W. W. Peters, at the store of Silliman and Gardiner, and demanded acceptance of the same, which was refused" etc. The draft was protested at Troy on the 16th of April; notice of protest directed to the indorser was deposited in the post-office at Evansville on the 23d of April. It was shown that the usual course of mail from Troy to Evansville was six or seven days, and that Evansville was the nearest post-office to the indorser's residence which was a half mile out of town.

    Held, that there was sufficient evidence of presentment to Peters, the drawee .

    Held, also, that there was no lack of diligence in giving notice of protest to the indorser.


    Counsel: Andrew L. Robinson and Conrad Baker, for appellant.

    John J. Chandler, for appellee.

    Judges: Stuart, J.

    Opinion by: Stuart

    Opinion

    [*267] Stuart, J.--Suit on a bill of exchange by Drew, indorsee, against Sharpe, the indorser. The action was instituted before the mayor of the city of Evansville, where the plaintiff had judgment for the bill and interest. Sharpe appealed to the Circuit Court, where it was tried with the like result. Sharpe excepted to the rulings of that Court, and now appeals to this.

    Two points are made and argued--1. The evidence of presentment to the drawee for acceptance. 2. The evidence of notice of protest to Sharpe.

    1. It is correctly contended that the HN1 presentment for acceptance should be to the drawee himself, if he can be found. Chitty on Bills, 278. If to an agent or other person authorized to accept, the fact should appear.

    In the present case the only evidence of presentment is the certificate of protest. The notary certifies "that on, etc., I did present the annexed draft of T. C. Wetmore on W. W. Peters, at the store of Silliman and Gardiner, and demanded [**2] acceptance of the same, which was refused," etc. It is contended that this is not evidence of a presentment to Peters for acceptance.

    HN2 The statute makes notarial certificates evidence of the facts therein stated. 2 R. S. p. 91. The notarial certificate is clear as to the fact of presentment, the place of presentment, the demand of acceptance, and the refusal. To whom was it presented? who refused to accept? It cannot admit of doubt that Peters himself was the person. The plain English of the protest is that [*268] the notary found Peters at the store of Silliman and Gardiner, Troy, N. Y., and there demanded of him acceptance, which Peters refused. The form here used seems to be the common one prescribed by the books. Chitty on Bills, 333; Byles on Bills, 191.

    The language is not even obscure. The presentment, the demand, the refusal, all clearly mean, that it was the drawee who was the object and the actor. We are not at liberty to doubt the sufficiency of the evidence that the bill was duly presented for acceptance.

    2. The notice of protest to Sharpe. The bill was protested on the 16th of April. The notice of protest was deposited in the post-office at Evansville, directed [**3] to Peter Sharpe, Evansville, Indiana, on the 23d of April. It was shown that the usual course of the mail from Troy to Evansville was six or seven days. Sharpe lived half a mile from the post-office out of the city. But he had a box at that office, and that was the nearest post-office.

    We think this sufficient. HN3 "The law requires only reasonable diligence and efforts, made in good faith, to notify the parties to a bill of its protest." Pate v. State Bank, 3 Ind. 176. Where the parties live in the same city, the practice of notaries is to give personal notice. Ireland v. Kip, 10 Johns. 490. Ireland v. Kip, 11 Johns. 231. Even there, personal notice is required only where the transaction to be notified occurred in the same place in which the party to be notified resides. Eagle Bank v. Hathaway, 5 Met. 212. But where the party whose liability is to be fixed by notice, resides out of town, it is different. The case of Fisher v. State Bank, 7 Blackf. 610, is directly in point. Taylor, one of the indorsers, lived a mile from Fort Wayne. The notice of a protest was addressed to him at the Fort Wayne post-office. This was held sufficient. So, also, [**4] Timms v. Delisle, 5 Blackf. 447; Bank of Columbia v. Lawrence, 1 Pet. 578 1Link to the text of the note.

    [**5] Per Curiam.--The judgment is affirmed, with 5 per cent . damages and costs.

    Filed June 6, 1857.
    Footnotes

    1Link to the location of the note in the document

    See, also, Bell v. State Bank, 7 Blackf. 456; Bank of the United States v. Carneal, 2 Pet. 543; Reid v. Payne, 16 Johns. 218; Bank of Geneva v. Howlett, 4 Wend. 328; 3 Kent's Com. 107; Curtis v. State Bank, 6 Blackf. 312; Ohio Life Ins. and Trust Co. v. Mc Cague, 18 Ohio 54; Turner v. Rogers, 8 Ind. 139; Beveridge v. Burgis, 3 Camp. 262; Bank of Utica v. De Mott, 13 Johns. 432; Hill v. Varrell , 3 Me. 233; Stuckert v. Anderson, 3 Whart. 116; Story on Prom. Notes, sec. 316; Harris v. Robinson, 4 How. 336; Lambert v. Ghiselin, 9 How. 552; Jenks v. Doylestown Bank, 4 W. & S. 505; Bell v. Hagerstown Bank, 7 Gill 216; Sheldon v. Benham, 4 Hill, 129; Cayuga Co. Bank v. Bennett, 5 Hill, 236; Laporte v. Landry, 5 Mart. (La.) 359; Louisiana State Bank v. Rowell, 6 Mart. (La.) 506; Brindley v. Barr, 3 Harr. (Del.) 419; Jones v. Lewis, 8 W. & S. 14. See Edwards on Bills and Notes, from 601 to 614, where nearly all the cases are cited; Van Vechten v. Pruyn 13 N.Y. 549; Ransom v. Mack, 2 Hill 587; Carroll v. Upton, 3 N.Y. 272; Bank of Utica v. Bender, 21 Wend. 643.

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    1 month ago
  • Gobbo snitched on other underworld lawyers, royal commission told
    Tom Cowie
    By Tom Cowie
    July 2, 2019 — 6.47pm

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    Supergrass barrister Nicola Gobbo provided police with information about a "small cadre" of underworld lawyers that led to raids over the alleged payment of legal fees through proceeds of crime.

    Former Purana Taskforce detective Stuart Bateson told the royal commission into police informers on Tuesday that Ms Gobbo started giving him information in 2005 about the potential criminal behaviour of defence lawyers, which included allegations of money laundering.

    He said it was his belief that a barrister and solicitor were accepting proceeds of crime as payment.

    "We had every asset of [an underworld figure] restrained ... there's no possible way they could be getting paid," he said.
    Police informer and barrister Nicola Gobbo.

    Police informer and barrister Nicola Gobbo.Credit:Joe Armao
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    Police executed a warrant on the barrister's chambers based on Ms Gobbo's information and discovered two cheques of $100,000 paid by a bookmaker, he said.

    When asked if the barrister was charged, he said: "No, much to my chagrin. I made recommendations that weren't acted on."

    Commander Stuart Bateson.

    Commander Stuart Bateson.

    Commander Bateson, who investigated murders at the height of Melbourne's gangland war and was portrayed in the Underbelly series, said Ms Gobbo played an "insignificant role" in breaking the underworld's code of silence.

    Ms Gobbo has previously claimed credit for her "pivotal role" in convincing a key witness to snitch on drug lord Carl Williams, which ultimately led to his conviction for three gangland murders.

    But Mr Bateson said the key witness had "no choice" but to roll on the notorious drug lord in 2003 after he was secretly taped talking about gangland killings during rides in a police car to and from prison.

    "He was always going to make that deal," Mr Bateson said.

    "Her involvement in him becoming a Crown witness compared to everything else that got him there, in my view, is insignificant."

    Mr Bateson said that he believed Ms Gobbo had acted in the best interests of her client, despite being a known Williams associate herself.

    He said that Ms Gobbo had expressed fear for her safety while acting for the witness and that police had redacted her name from court documents to prevent Williams from finding out her role.

    "What I believed is that Mr Williams and his crew would find it objectionable that Nicola Gobbo had facilitated the instructions of [the witness] because he believed she was part of their crew," Mr Bateson said.
    Related Article
    Police informer and barrister Nicola Gobbo.
    Victoria Police
    'Not a delicate flower': Nicola Gobbo recruiter lashes out at royal commission

    On Monday, the Andrews government released a six-month progress report written by the Royal Commission into the Management of Police Informants, which revealed it had uncovered evidence that the conviction of a former client of Ms Gobbo may have been corrupted by her work as an informer.

    The Age understands more than 20 former clients have now been notified by authorities that their convictions could have been corrupted by Ms Gobbo’s actions, which include violating legal professional privilege and breaching client confidentiality.

    The royal commission estimates Ms Gobbo acted for more than 1000 people as a solicitor or barrister during the time she worked as a registered informer between 1995 to 2009.

    The report also labelled its work as a "mammoth, Janus-like task" that had been impeded by slow disclosure of information by Victoria Police.

    "Delays in the provision of this material in a form that can be made public have hampered the commission’s progress, a concern I have raised expressly with Victoria Police in public hearings," Commissioner Margaret McMurdo wrote.

    "I remain cautiously optimistic that the difficulties encountered to date will lessen as the inquiry continues."

    with Chris Vedelago

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    1 month ago
  • Charles Ponzi created a new topic ' Epstein and Prince Andrew Flights' in the forum.
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    US Judge unseals files in case of girl, 17, ‘forced to have sex with Andrew’
    Prince Andrew with Virginia Roberts, then 17, in 2001.
    Prince Andrew with Virginia Roberts, then 17, in 2001.

    By Tom Harper and Michael Bilton
    The Times
    24 minutes ago July 14, 2019

    Britain’s Prince Andrew faces further embarrassment from the Jeffrey Epstein scandal after a judge ordered thousands of secret documents relating to an alleged “sex slave” of the tycoon to be released.

    About 2000 files from a defamation case involving Virginia Roberts, an alleged trafficking victim, are due to be unsealed following a ruling by the US court of appeal this month.

    Ms Roberts, now 35, claims she was forced by Epstein to have sex with the Duke of York in London, New York and the Caribbean. Prince Andrew has strongly denied the claims.
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    In 2015 Ms Roberts, a mother of three, claimed she had been ­recruited as a “sex slave” by Epstein, a billionaire financier who was charged last week with trafficking girls as young as 14. Ms Roberts alleged that she had been “procured for sexual activities” by Ghislaine Maxwell, who worked as a personal aide to Epstein and had been a friend of the duke.

    In 2001, Ms Roberts, then aged 17, was photographed in Maxwell’s London flat with Andrew’s arm around her waist. A judge later threw out her allegations against Andrew because they were “immaterial and impertinent to the central claim” against Epstein.

    Ms Maxwell gave an interview in 2015 calling Ms Roberts a “liar”. Ms Roberts then sued Ms Maxwell for defamation in the US and the case was settled. Most of the court documents remained under seal following legal representations from Ms Maxwell, who is a daughter of the late disgraced media tycoon Robert Maxwell.

    In a ruling this month, Jose Cabranes, a US appeals judge, said the public’s right to know outweighed the privacy rights of people who wanted to keep secrets.

    Days later Epstein, 66, was charged in New York with trafficking a “vast network of underage victims” between his homes in Manhattan and Palm Beach, Florida. Epstein denies the charges.

    Last weekend FBI agents found thousands of graphic photos, many of underage girls, and a safe filled with CDs labelled “nude girls” during a raid on Epstein’s $110 million Manhattan house.

    The charges have raised questions about how Epstein avoided prosecution before. In 2008 he ­negotiated a secret plea on similar accusations in a separate case in Florida. The deal, which allowed Epstein to avoid sex-trafficking charges, also handed his associates immunity from prosecution.

    Alexander Acosta, a former federal prosecutor in Florida, ­negotiated the deal. On Friday he resigned as Donald Trump’s ­labour secretary amid criticism of his handling of the case.

    Mr Trump described Epstein as a friend in 2002, adding: “He’s a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side.”

    Bill and Hillary Clinton are also known to have been associates.

    However, none of the investment banker’s friendships has raised more eyebrows than his ­relationship with Prince Andrew. Epstein attended the Queen’s birthday party in 2000 and visited Sandringham, Balmoral and Windsor Castle.

    Prince Andrew’s ex-wife, the Duchess of York, accepted £15,000 from Epstein in 2010 to help her pay off debts. She later apologised. By that time, Epstein was a convicted sex offender. Yet the same year, Epstein and ­Andrew were photographed walking through New York’s Central Park together. The duke was later dropped as British trade ­ambassador.

    When Ms Roberts made her claims in 2015, the duke issued a strong denial, with Buckingham Palace saying “any suggestion of impropriety with underage ­minors is categorically untrue”.

    Ms Roberts claimed that she had been “forced” by Epstein to have sex with the duke in London, in Epstein’s New York mansion and on Epstein’s private island in the US Virgin Islands.

    Public records and flight logs for the black Gulfstream jet owned by Epstein, obtained by The Sunday Times, suggest Andrew was in the same place as Ms Roberts on the three occasions she claims they had sex. Ms Roberts went on a six-day tour of Europe before reaching London on March 9, 2001. The photograph of Ms Roberts with the duke is dated March 2001.

    One month later, on April 9, the court circular records that ­Andrew began an official visit to the US. The same day Ms Roberts flew from Palm Beach to New Jersey. According to Ms Roberts, it was around this time that she was ordered to Epstein’s mansion in New York where she allegedly had sex with Andrew on a massage table. Flight logs show that Ms Roberts and Epstein left New York on April 11 for St Thomas in the US Virgin Islands.

    Ms Roberts alleges that she had sex with Andrew on Epstein’s ­island. Gwendolyn Beck, a financial adviser who knew Epstein and Andrew, said the duke spent two nights on the island at that time.

    “He was in the bungalow next to me,” she said. Andrew arrived in the Bahamas on April 15 to join a holiday with his ex-wife and their daughters, Princesses Beatrice and Eugenie, then aged 12 and 11.

    The palace said on Saturday: “It is emphatically denied that (Andrew) had any form of sexual contact or relationship with ­Virginia Roberts. Any claim to the contrary is false.”

    Sunday Times

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    1 month ago
  • Charles Ponzi created a new topic ' Henry Kaye again' in the forum.
    BusinessCompaniesCommercial real estate

    Land-banking scam ends up in Supreme Court
    Simon Johanson
    By Simon Johanson
    July 13, 2019 — 12.00am

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    A city law firm and two of its principal lawyers were allegedly at the heart of one of Australia’s largest land-banking schemes that fleeced mum-and-dad investors of at least $24 million, Supreme Court documents claim.

    Melbourne firm Evans Ellis Lawyers and its solicitors Darren Eliau and Benjamin Skinner acted for a company, Midland Hwy Pty Ltd, and engaged in a complex web of transactions between 2011 and 2013 that ultimately lost the investors money, a writ filed by the liquidators of the failed land-banking company claims.

    The liquidators of Midland, mid-tier business services firm BDO and global powerhouse PwC, are claiming unspecified damages and costs alleging the firm and its lawyers were negligent, engaged in misleading and deceptive conduct and breached contracts and their fiduciary duties.
    Henry Kaye, Jamie McIntyre and another associate at a fancy dress party.

    Henry Kaye, Jamie McIntyre and another associate at a fancy dress party.

    Evans Ellis Lawyers did not return calls for comment. Neither Mr Skinner nor Mr Eliau could be contacted.
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    Company records show the law firm trades as WD Legal Holdings Pty Ltd and that Mr Skinner is a director. Mr Eliau is a secured creditor of the business.

    The firm lists its office at 455 Bourke Street in Melbourne and was tipped into administration by the Tax Office in 2016 when the courts appointed liquidator Andrew Poulter, documents show.

    "I am investigating and considering undertaking public examinations against both the director and the secured creditor," Mr Poulter said.

    Individuals who fail to attend liquidator-initiated public examinations face potential arrest proceedings.

    Midland Hwy was used to run the Hermitage Bendigo land-banking scheme and was the subject of a long-running investigation by The Age and Herald.
    Jamie McIntyre speaking at a public hearing for scrutiny of financial advice in September 2015 in Melbourne.

    Jamie McIntyre speaking at a public hearing for scrutiny of financial advice in September 2015 in Melbourne.Credit:Wayne Taylor

    That probe revealed get-rich-quick property spruikers Jamie McIntyre and Henry Kaye were targeting hundreds of vulnerable and financially unsophisticated Australian investors with the lure of huge rewards from high-risk “options” on yet-to-be-developed land projects.

    The investigation sparked a Senate committee hearing into land banking and an investigation by the Australian Securities and Investment Commission, which resulted in Queensland-based McIntyre, and his brother Dennis, being banned for 10 years from providing financial services and managing corporations.

    McIntyre, Kaye and their associates flogged the high-risk "options" over yet-to-be-developed empty farms and rubbish dumps to gullible real estate investors. None of the missing millions has been returned.

    Belarus-born Kaye amassed a fortune from get-rich seminars in the early 2000s before his wealth education empire collapsed in 2003 owing 3500 investors up to $60 million.

    A Federal Court judge in 2016 found the McIntyre brothers' land-banking schemes were unlawful, unregistered managed investment schemes and labelled the pair “at the very least, completely financially incompetent”.

    The Midland writ alleges Evans Ellis and its lawyers negotiated a complex land sale with multiple transactions to Midland while at the same time also acting for all other parties in the deal, including another liquidated business Bilkurra Investments.

    “Following the execution of transaction documents, all the plaintiff’s assets were transferred to Bilkurra, leaving the plaintiff with the liability to repay option holders approximately $24 million but no assets with which to do so,” the liquidators allege.

    "In advising or acting for other parties to the relevant transactions, and failing to warn the plaintiff of the consequences ... the defendants breached their fiduciary duty to the plaintiff not to act when in a position of conflict," they allege.

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    Commercial real estate
    Land banking

    Simon Johanson
    Simon Johanson

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    Property Editor at The Age and BusinessDay journalist for Fairfax's theage.com.au, smh.com.au, watoday.com.au and brisbanetimes.com.au.

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    1 month ago
  • Contrast the pilots evidence of Bill Clinton's numerous trips on the big plane.

    www.documentcloud.org/documents/1508967-...sition-excerpts.html

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    1 month ago
  • Charles Ponzi created a new topic ' ACCC Antitrust Cartel case v Citi ANZ' in the forum.
    Cartel witnesses avoid questions for now
    Tim BoydReporter
    Jul 9, 2019 — 1.05pm

    The Crown has rejected a request from Citigroup, ANZ and Deutsche Bank to cross-examine witnesses before a landmark criminal cartel court case heads to a jury.

    Lawyers representing Citigroup, ANZ, Deutsche Bank and six senior bankers jointly lodged applications with the Commonwealth Director of Public Prosecutions requesting an opportunity to cross-examine five witnesses in the case.

    This would allow the defendants to learn more about the crimes they were being charged with, which related to alleged criminal cartel behaviour in a $2.5 billion ANZ capital raising in 2015.

    "The prosecution opposes all of these applications," said prosecution lawyer Shanaka Jayasuriya at Sydney's Downing Centre on Tuesday morning.

    Citigroup lawyers Dean Jordan, from Forbes Chambers, left, and Andrew Eastwood, from Herbert Smith Freehills, leave the Downing Centre Courts in Sydney. Kate Geraghty

    The next step in the case is for two days to be set aside where the defendants are given the chance to put their arguments to a magistrate as to why they should be allowed to grill the five witnesses.

    It is assumed some of these witnesses are from JPMorgan, the investment bank that blew the whistle on the alleged cartel behaviour.

    At the end of the two days of argument, the presiding magistrate would decide whether the cross-examinations went ahead.

    The preliminary dates for the two days flagged in court on Tuesday were September 25 and 27.
    'We're going to need a court room'

    Forbes Chambers senior counsel Dean Jordan, representing Citigroup, expressed some frustration at the time the Crown was taking in the case.

    The Crown prosecutor asked the magistrate for two weeks to prepare its document outlining why it was opposed to the cross-examination request, despite having had the submissions for a month.

    "The prosecution have had our submissions for four weeks already," Mr Jordan said.

    However, Magistrate Jennifer Atkinson gave the prosecution an extra four weeks to prepare the document.

    Surveying the crowded room at the Downing Centre, packed with lawyers for the three corporations and six individuals, Magistrate Atkinson said more space would be needed at the September hearings.



    "We're going to need a court room," she said.

    The Crown prosecutor launched criminal cartel charges against senior staff at ANZ and investment banks Deutsche and Citigroup in June last year. The allegations were that ANZ and its investment bankers came to "an arrangement or understanding" about how unsold stock from a capital raising would be sold.

    During this capital raising, joint underwriters JPMorgan, Deutsche and Citigroup failed to find buyers for 25.5 million shares, or $789.2 million of stock.

    JPMorgan was granted immunity and not charged in the case, after blowing the whistle.



    The Australian Competition and Consumer Commission's immunity policy says that to receive immunity a party needs "to provide a detailed description of the cartel conduct". Under competition law only one member of a cartel can gain immunity.

    Individuals found guilty of breaching cartel laws face a maximum of 10 years' jail and for corporations, fines can reach three times the total value of the benefits from the contravention or if these benefits cannot be determined, 10 per cent of annual turnover.

    The six individuals who face charges in the case are John McLean, Itay Tuchman and Stephen Roberts of Citigroup; Michael Ormaechea and Michael Richardson formerly of Deutsche; and Rick Moscati of ANZ.


    Read More...
    1 month ago
  • Charles Ponzi created a new topic ' Epstein's friends by Julie Brown' in the forum.
    With Jeffrey Epstein locked up, these are nervous times for his friends, enablers

    By Julie K. Brown
    July 07, 2019 05:59 PM, Updated 3 hours 35 minutes ago

    Attorneys representing Epstein’s alleged victims speak after the multimillionaire gets arrested
    Attorneys representing some of multimillionaire Jeffrey Epstein's alleged victims talked to the media outside of the federal courthouse in Manhattan on July 8, 2019, hours after the sex trafficking charges against Epstein were announced. By Emily Michot | Marta Oliver Craviotto
    Up Next
    Jeffrey Epstein apologizes, but not to his victims
    Current Time 0:00
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    Duration 1:41
    Attorneys representing some of multimillionaire Jeffrey Epstein's alleged victims talked to the media outside of the federal courthouse in Manhattan on July 8, 2019, hours after the sex trafficking charges against Epstein were announced. By Emily Michot | Marta Oliver Craviotto

    Jeffrey Epstein spent a second night in a New York jail cell Sunday, with a federal indictment expected to be unsealed Monday, charging him with sex offenses involving underage girls he and others allegedly trafficked in New York and Florida, sources have told the Miami Herald.

    His Saturday arrest capped months of investigating, led by federal agents and prosecutors with the Southern District of New York’s Public Corruption Unit, assisted by investigators with the sex trafficking division. Although details of the case remain undisclosed, there are indications that others involved in his crimes could be charged or named as cooperating witnesses.

    Among those potentially on the list: Ghislaine Maxwell, a 57-year-old British socialite and publishing heir who has been accused of working as Epstein’s madam; and Jean-Luc Brunel, who, according to court records, was partners with Epstein in an international modeling company.

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    Duration 1:41
    Epstein is charged with sex trafficking of underage girls

    Geoffrey Berman, the U.S. Attorney for the Southern District of New York held a press conference on July 8, 2019 announcing that Jeffrey Epstein had been charged with sex trafficking of underage girls in Manhattan and Palm Beach, Florida. By Emily Michot | Marta Oliver Craviotto

    Epstein, 66, was arrested at Teterboro Airport in New Jersey shortly before 4 p.m. Saturday, as he arrived on his private jet from Paris, where he had been vacationing since June 14, aviation records show. About an hour after they picked him up, federal agents arrived at his imposing Manhattan townhouse, breaking down the door to execute search warrants.

    Sp_Screen Shot 2018-11-12 at 8.48.53 PM.png
    Ghislaine Maxwell was sued for slander after calling Virginia Roberts Giuffre, one of Jeffrey Epstein’s accusers, a liar. Maxwell, a close associate of Epstein, sought to have documents from the court case remain sealed.

    The fact that search warrants were issued shows that federal investigators have new evidence against Epstein beyond the sex cases he was given federal immunity for in Florida in 2008, legal experts told the Miami Herald.

    “They can’t take information from a case in 2002 or 2005 to get a search warrant today; there had to have been something for probable cause that contains evidence of a crime found now, so I’m interested in what that evidence is,’’ said Francey Hakes, a former federal prosecutor who once oversaw the Justice Department’s child exploitation crimes division.

    Duration 5:40
    Where are they now? The biggest players in the Jeffrey Epstein case

    The girls who were abused by Jeffrey Epstein and the cops who championed their cause remain angry over what they regard as a gross injustice, while Epstein's employees and those who engineered his non-prosecution agreement have prospered. By Marta Oliver Craviotto | Emily Michot | Julie K. Brown

    Lawyers for Epstein’s victims, in court filings, have often likened Epstein’s sex operation to an organized crime family, with Epstein and Maxwell at the top, and below them, others who worked as schedulers, recruiters, pilots and bookkeepers.

    For her part, Maxwell, whose social circle included such friends as Bill and Hillary Clinton and members of the British Royal family, has been described as using recruiters positioned throughout the world to lure women by promising them modeling assignments, educational opportunities and fashion careers. The pitch was really a ruse to groom them into sex trafficking, it is alleged in court records.

    At least one woman, Sarah Ransome, claimed in a lawsuit that Maxwell and Epstein threatened to physically harm her or destroy any chance she would have of a fashion career if she didn’t have sex with them and others.

    Maxwell has denied the claim and has never been charged.

    Another woman, Virginia Roberts Giuffre, alleges she was recruited by Maxwell in 2000 when she was 16 years old. Giuffre was working as a spa attendant at Mar-a-Lago, President Donald Trump’s winter home and resort in Palm Beach at the time, court records show.

    Trump, who lived less than a mile from Epstein’s waterfront mansion in Palm Beach, had also been friends with Epstein. Records show that he flew on Epstein’s private jet on occasion and attended parties and social events where he was photographed with Epstein.

    Giuffre brought a civil defamation suit against Maxwell in 2015, after the Epstein associate called her a liar. It was settled two years later. But 2,000 pages of the previously sealed case file are expected to be made public in a few weeks, the result of litigation by the Miami Herald, and those records could prove damaging to Maxwell and others involved in Epstein’s alleged scheme.

    “The one person most likely in jeopardy is Maxwell because the records that are going to be unsealed have so much evidence against her. She is in a particularly vulnerable position and will have an interest in cooperating, even though she may have missed that opportunity,’’ said lawyer David Boies, who represents Giuffre.

    Boies said Brunel could also figure into Epstein’s prosecution because he has in the past offered to cooperate with investigators.

    “Brunel has been one of these back-and-forth people for years. We interviewed Brunel more than four years ago and he promised to cooperate and then he didn’t, and he promised and didn’t. He was terrified of Epstein,’’ Boies said.

    Giuffre claims that Epstein used the modeling agency, Mc2, to lure underage girls and in court papers said Epstein “deliberately engaged in a pattern of racketeering that involved luring minor children through Mc2, mostly girls under the age of 17, to engage in sexual play for money.”

    Brunel has denied these claims, and says that Epstein was not a business partner or investor in his modeling company.

    But Epstein’s arrest could open a window to expose other influential people who knew about or participated in his crimes. The question is what evidence or information does Epstein have against them and how might he use it?

    VirginiaRoberts 08.jpg
    This widely published photo of Virginia Roberts Giuffre with Prince Andrew bolstered her claim that she was loaned out for sexual purposes to famous men by Jeffrey Epstein. Copy Photo Courtesy of Virginia Roberts

    “This case is being handled by the public corruption unit, and those people don’t typically handle cases involving child exploitation, so there may very well be some bombshells here of other people’s involvement because their role could mean there was some official action that was corrupt or some official acted corrupt in some way,’’ Hakes said.

    Monday’s first appearance is expected to be brief, with the actual indictment revealing little of substance. More crucial will be a bond hearing later in the week to decide whether Epstein can go free while awaiting trial.

    The Epstein case drew scrutiny following an investigation published in November by the Miami Herald, called Perversion of Justice, that examined the ways in which the U.S. attorney for the Southern District of Florida, Alexander Acosta, worked in conjunction with Epstein’s lawyers to engineer the non-prosecution agreement — and keep it secret from Epstein’s victims so they could not object. Acosta is now President Trump’s secretary of labor.

    GettyPurchased-Epsten-Dershowitz
    Once a friend of presidents, the ultra-rich and the elite of Wall Street’s bankers — plus a major benefactor to Harvard University — Jeffrey Epstein handled portfolios estimated to be worth over $15 billion. Then he became ensnared in a scandal involving the sexual abuse of underage girls. He is seen here, pre-scandal, at left, in conversation with Alan Dershowitz, one of America’s best-known legal experts and a Harvard Law professor emeritus, at a Cambridge event. Dershowitz became a key member of Epstein’s legal team. Rick Friedman Corbis via Getty Images

    As part of the series, the Herald examined tens of thousands of court documents, and identified more than 80 possible victims, most of whom were 13 to 16 years old.

    In 2006 and 2007, the FBI confirmed that Epstein, who has homes in Manhattan, Palm Beach, New Mexico, Paris and in the U.S. Virgin Islands, sexually abused nearly three dozen girls at his Palm Beach mansion. He trained the girls to help recruit other young girls as part of an operation that operated like a pyramid scheme. He also had recruiters who helped with his appointments, scheduling as many as three or four girls a day, the FBI probe found.

    The Herald series also revealed that Acosta held an unusual one-on-one meeting with Epstein’s lawyer, Jay Lefkowitz, in October 2007, at a West Palm Beach Marriott. Records showed that it was at that meeting that Acosta acceded to a non-prosecution agreement that gave Epstein and others involved in his operation federal immunity.

    As part of the deal, Epstein was allowed to plead guilty to two state prostitution charges involving a 17-year-old girl, and he served 13 months in the Palm Beach County jail. The deal was configured so that no one — not even his victims — knew the details until nearly a year later. By that time, Epstein had already been released from jail and had returned to his jet-setting life.

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    In February, a federal judge ruled that the deal was illegal because it violated provisions of the Crime Victims’ Rights Act. That decision was the result of a federal lawsuit brought by two of Epstein’s victims who had been fighting to put him in prison for more than a decade.

    Since the publication of Perversion of Justice, members of Congress have pushed for an investigation of the circumstances surrounding the non-prosecution agreement.

    “Perhaps now Epstein’s victims will see real justice. But true accountability is still glaringly absent for Alex Acosta, who approved this serial pedophile’s permissive plea deal,” said U.S. Rep Debbie Wasserman Schultz, a Florida Democrat who has pushed for a reopening of the case. “If the DOJ will not adequately review and account for the miscarriage of justice that Acosta authorized, Congress must step in and provide that vigorous oversight.”

    Sp_Epstein_Reiter 01 EKM.jpg
    Michael Reiter, who was police chief in Palm Beach, said he faced intense local pressure to go easy on Jeffrey Epstein. He refused, instead taking the case to the U.S. Justice Department. Emily Michot This email address is being protected from spambots. You need JavaScript enabled to view it.

    Among those who were involved early on in the criminal investigation was Michael Reiter, Palm Beach’s then-police chief, who was subjected to intense political pressure to ease up on Epstein. He and the lead detective, Joe Recarey, appealed to the FBI after the Palm Beach County prosecutor, Barry Krischer, indicated he wanted to charge Epstein only with minor crimes.

    “Thankfully, the authorities in New York have the courage to investigate and prosecute Epstein in the way that should have occurred when the crimes were first reported in Florida over a decade ago,’’ Reiter said.
    Related stories from Miami Herald
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    July 06, 2019 08:51 PM

    Read more here: www.miamiherald.com/news/state/florida/a...2.html#storylink=cpy

    Read More...
    1 month ago
  • Charles Ponzi created a new topic ' Was the LSBC spying on American's cases?' in the forum.
    National Australia Bank Ltd v Waldron & Registrar of Titles [2015] VSC 141 (21 April 2015)

    Last Updated: 24 April 2015

    IN THE SUPREME COURT OF VICTORIA

    Not Restricted

    AT MELBOURNE

    COMMERCIAL AND EQUITY DIVISION

    COMMERCIAL COURT

    S CI 2015 00997

    IN THE MATTER of s 90 of the Transfer of Land Act 1958

    NATIONAL AUSTRALIA BANK LTD (ABN 12004044937)


    Plaintiff



    v




    CYBIL NICKETT WALDRON (also known as CYBIL NICKETT SGARGETTA)

    and

    THE REGISTRAR OF TITLES

    First Defendant

    Second Defendant

    ---

    JUDGE:

    ZAMMIT J
    WHERE HELD:

    Melbourne
    DATE OF HEARING:

    10 April 2015
    DATE OF JUDGMENT:

    21 April 2015
    CASE MAY BE CITED AS:

    National Australia Bank Ltd v Waldron & Registrar of Titles
    MEDIUM NEUTRAL CITATION:

    [2015] VSC 141

    ---

    PROPERTY LAW – Transfer of Land Act 1958 – Removal of caveats – Priority of registered interest – Serious question to be tried – Balance of convenience.

    ---

    APPEARANCES:

    Counsel

    Solicitors
    For the Plaintiff

    Mr A Segal

    Gadens Lawyers





    For the Defendant

    Mr M Gronow

    N/A

    HER HONOUR:

    Introduction

    1 The plaintiff brings an application by originating motion seeking removal of a caveat pursuant to s 90(3) of the Transfer of Land Act 1958.

    2 The history of this matter relates to a property, being the land described in Certificate of Title Vol 04244 Fol 765, known as 92 Old Coach Road, Kalorama, Victoria (‘the property’).

    3 Pursuant to a written agreement dated 10 September 2007 from the plaintiff, National Australia Bank Ltd (‘the bank’) to Elliott Daniel Sgargetta (‘Mr Sgargetta’), the bank provided Mr Sgargetta financial accommodation by way of a choice package fixed rate home loan (‘loan agreement’). The security for the loan agreement is a registered mortgage over the property. Mr Sgargetta is the defendant’s (Mrs Sgargetta) husband. On 4 January 2007, Mr Sgargetta provided a mortgage over the property to the bank to secure the loan agreement (‘mortgage’). It was registered in the Register Book in dealing No AE 912489W on 21 February 2007.

    4 Under the loan agreement, the bank advanced $300,000 to Mr Sgargetta, such amount being secured by the mortgage. As at 23 January 2015, Mr Sgargetta is in default under the loan agreement and mortgage and is indebted to the bank in the amount of $453,433, excluding costs and expenses.

    5 On 8 October 2008, Mrs Sgargetta executed a contract of sale (‘Contract of Sale’) with her husband to purchase the property. At the time they were living in the property and were engaged in the purchase of a new property at 1 Driffield Crescent, Sassafras, Victoria. They were looking to refinance with Suncorp Bank and Bankwest. The sale price under the Contract of Sale was $385,000.

    6 Mrs Sgargetta deposes that the purpose of purchasing the property from her husband was so that her parents could live in the property which would be close to her and her husband. Mrs Sgargetta’s parents were living in the USA at the time and it was Mrs Sgargetta’s understanding that the property could not be purchased in their names because they were foreign citizens and it was not a new property.

    7 It was Mrs Sgargetta’s intention to purchase the property on her parent’s behalf and it be registered in Mrs Sgargetta’s name even though her parents would live there. It was Mrs Sgargetta and her husband’s intention that her husband would use the purchase moneys Mrs Sgargetta paid to him for the property to fund the purchase of a new house in Sassafras, where they now live.

    8 On 4 December 2008, a caveat registered No AG229854R (‘caveat’) was lodged by Mrs Sgargetta and registered on the title to the property by the second defendant, the Registrar of Titles. The caveat that Mrs Sgargetta claims over the property is ‘as purchaser under a contract note dated 8 October, 2008 made between Elliott Daniel Sgargetta as vendor and Cybil Nickett Waldron as purchaser’.

    9 Pursuant to the Contract of Sale, Mrs Sgargetta paid her husband an initial holding deposit of $8,000 in two instalments of $5,000 on 12 September 2008 and $3,000 on 15 September 2008, which was paid prior to the signing of the Contract of Sale. Mrs Sgargetta then paid the first instalment amount of $177,000 on 7 December 2008.

    10 Mrs Sgargetta deposes that the source of the initial payment and the first instalment amount totalling $185,000 to her husband, were funds from her parents.

    11 In accordance with the Contract of Sale, Mrs Sgargetta still had to pay $200,000, in addition to the $185,000 already advanced.

    12 Mrs Sgargetta was aware that her husband had a mortgage and loan with the bank and that the property was security for the loan. The bank had provided to Mr Sgargetta and their conveyancer a payout statement for approximately $299,000 to pay out the mortgage and loan settlement on 1 December 2008. The Contract of Sale between Mr and Mrs Sgargetta did not proceed, as Mr Sgargetta raised a dispute with the bank over the amount required to discharge the mortgage. This subsequently became the subject of court proceedings between Mr Sgargetta and the bank.

    13 On 8 June 2012, County Court of Victoria proceeding No CI-12-02770 was commenced by the bank against Mr Sgargetta seeking an order for possession of the property and the total amount owing under the loan agreement and the mortgage (‘County Court proceeding’).

    14 On 17 February 2014, judgment for possession of the property and debt was entered in the County Court proceeding, whereby the County Court ordered that the bank recover from Mr Sgargetta possession of the property and that Mr Sgargetta pay to the bank the sum of $440,441.19 plus interest and costs (‘judgment’).

    15 On 27 February 2014, Mr Sgargetta filed a Notice of Appeal in the Supreme Court of Victoria, Court of Appeal (‘Court of Appeal’) to appeal the judgment (proceeding No S APCI 2014 0029).

    16 On 30 July 2014, the Court of Appeal made an order dismissing Mr Sgargetta’s appeal.

    17 On 31 July 2014, a warrant of possession was issued by the County Court for possession of the property.

    18 By letter dated 4 August 2014, the bank wrote to Mrs Sgargetta requesting that she withdraw the caveat. The letter enclosed a withdrawal of caveat form.

    19 As at 28 January 2015, the bank’s solicitors, Gadens, had not received a response to the letter dated 4 August 2014.

    20 On 7 August 2014, Mr Sgargetta filed a stay application summons in the Court of Appeal seeking orders that there be a stay on the judgment and a stay of the order made by the Court of Appeal until Mrs Sgargetta’s application for special leave was heard and determined by the High Court of Australia (‘stay application’).

    21 On 11 August 2014, Mr Sgargetta filed an application for special leave to appeal to the High Court (‘special leave application’).

    22 On 22 August 2014, the Court of Appeal made orders refusing the stay application and dismissing Mr Sgargetta’s summons filed 7 August 2014.

    23 On 25 November 2014, the bank took possession of the property.

    24 On 11 December 2014, the High Court of Australia published the results of the special leave application. The special leave application was dismissed.

    25 By letter dated 16 December 2014, the bank wrote to Mrs Sgargetta requesting that she withdraw the caveat. No response has been received to the 16 August 2014 letter.

    26 There is another caveat registered on the title of the property, being caveat AK157557N and dated 30 January 2013, lodged by Create Capital Pty Ltd in its capacity as a mortgagee.

    27 Marketing of the property by a real estate agent retained by the bank is to commence shortly, with a view to sale of the property.

    28 The bank relies upon the affidavit of Kevin Pringle sworn 28 January 2015.

    29 Mrs Sgargetta relies on an affidavit sworn 6 April 2014.

    30 Both parties rely on written submissions.

    General principles

    31 The relevant principles to be applied in an application under s 90(3) of the Transfer of Land Act 1958 were conveniently summarised by Dodds-Streeton J in Goldstraw v Goldstraw.[1] Her Honour said:

    Section 90(3) is in the nature of a summary procedure analogous to the determination of interlocutory injunctions. The Court’s power under s.90(3) is discretionary. In that context, it is recognised that the caveator bears the onus of establishing that there is a serious question to be tried that he or she does have the estate or interest in the land claimed. That is, ‘in order to resist successfully the applications for removal of caveats (the caveator’s) arguments must be directed towards the assertion of an interest in the subject land in the light of relevant principles of property and equity law’. Further, if the caveator does establish the serious question to be tried in relation to the estate or interest claimed, the weight of authority indicates that the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.[2]

    32 Warren CJ in Schmidt v 28 Myola Street Pty Ltd[3] said:

    Without being exhaustive, the proper exercise of the discretion under s 90(3) will involve considering: in which party’s favour the balance of convenience lies; whether there is a serious question to be tried; and whether the caveator claims an interest wider than what the caveator may be entitled. These questions inform the ultimate consideration, that is, whether the caveator has discharged his or her onus of justifying the maintenance of the caveat. The process is comparable to the exercise undertaken in granting or denying an interlocutory injunction.[4]

    33 As a general rule, when considering the balance and convenience, the Court should take whichever course appears to carry the lower risk of injustice if the Court should turn out to have been ‘wrong’, in the sense of declining to order summary removal of the caveat where the caveator fails to establish its right at trial, or in failing to order summary removal of a caveat where the registered proprietor succeeded at trial.

    34 There is a relationship between the strength of the case in establishing a serious question to be tried and the extent to which the caveator must establish the balance of convenience favours the caveator. The stronger the case in establishing a serious question, the more readily the balance of convenience might be satisfied. It is adequate that the caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the property in question, in accordance with its normal proprietary rights.

    Serious question to be tried

    35 The bank accepts that a purchaser of property under an enforceable contract of sale has an equitable interest in the land, which can be supported by a caveat. The bank submits that in this case, the Contract of Sale, which was scheduled to settle in December 2008, did not proceed. Mrs Sgargetta’s evidence is that she is still ready, willing and able to complete the Contract of Sale by paying the balance of the purchase price of $200,000 to her husband or the bank. Even though the Bankwest loan approval has lapsed, Mrs Sgargetta’s evidence is that she is able to obtain this sum from family members. Mrs Sgargetta maintains that she wants the property as a residence for her parents who still wish to move to Australia to be near her, her husband and children.

    36 The bank submits that even if the Court is to accept that the Contract of Sale remains on foot, even though it has been over six years since settlement was due to take place, Mrs Sgargetta’s subsequent equitable caveatable interest in the property is not one which could take priority over the bank’s registered legal interest.

    37 The bank submits that a registered interest enjoys a benefit of indefeasibility and is superior to an unregistered interest. In this case, the bank submits that there is no right to maintain a caveat blocking the exercise of the power of sale because the caveator’s interest could not take priority over the registered mortgagee’s interest in the land.[5]

    38 The bank relies on the decision of Law Mortgagees Queensland Pty Ltd v Thirteenth Corp Pty Ltd[6] (‘Law Mortgagees Queensland Pty Ltd’) noting the approach of the New South Wales Court of Appeal in Vukicevic v Alliance Acceptance Co Ltd & Anor.[7] The bank also relies on the cases of NAB v Bridge Wholesale Acceptance Corporation (Australia) Ltd[8] and Kerrabee Park Pty Ltd v Daley[9] to support its submissions.

    39 In Law Mortgagees Queensland Pty Ltd, the plaintiff’s interest as registered mortgagee arose before the creation of any equitable interest in the caveat. Her Honour said in that case:

    Hence, in the present proceeding it was not until after registration of the plaintiff’s mortgage that any caveatable interest could first have arisen. It follows, therefore, that because the plaintiff’s interest as registered mortgagee arose before the creation of any equitable interest claimed in the caveats, the plaintiff's mortgage prevails and the caveats must be removed. I observe that this approach was adopted in Vukicevic v Alliance Acceptance Co Ltd & Anor.

    However, even if the interest claimed in the caveats had existed prior to registration of the plaintiff’s mortgage, the caveats must still be removed because notwithstanding the order of creation of the interest claimed by the Thirteenth Corp and of the plaintiff’s mortgage, in the absence of fraud, the plaintiff as registered mortgagee holds its registered estate in the Land free of the claims of Thirteenth Corp. So much arises from s 42 of the Transfer of Land Act 1958.[10]

    40 Her Honour went on to say in this case that:

    Finally, and in any event, the court would only entertain the maintenance of the caveats on the condition that Thirteenth Corp amend the caveats, institute proceedings forthwith to establish the interest claimed, and, most importantly, pay into court the whole of the amount due under the mortgage: ... ‘The caveator should not have been permitted to use its caveat to delay the completion of the mortgagee's sale without submitting to the terms which would have been imposed upon it if it had sought an injunction against completion of the sale’ ... In summary, therefore, the caveats must be removed firstly because the interest of the plaintiff is first in priority, secondly, there is no allegation of fraud to support interference with the paramountcy of the prior interest of the plaintiff, thirdly, the interests upon which the caveats are based are not equitable interests in land and fourthly, the proper remedy to Thirteenth Corp is an order for damages. Although the court does not reach the point, there is a fifth factor, namely, the failure of Thirteenth Corp to proffer any security.[11]

    41 In Law Mortgagees Queensland Pty Ltd, the contract of sale relied upon by the caveator was not unconditional at the relevant time because it was subject to approval of a plan of subdivision. On behalf of Mrs Sgargetta, it is submitted that this is in contrast to the present case as the Contract of Sale was and is unconditional. It is submitted that Mrs Sgargetta will, conditional upon paying the balance of the purchase price, under her Contract of Sale be entitled to a transfer of a registrable estate in fee simple over the entire property.

    42 Despite the fact that in Law Mortgagees Queensland Pty Ltd neither the deposit nor any other money was paid under the contract of sale,[12] the contract of sale was incomplete as in the present case. The interest claimed in the caveats in both cases is an equitable interest under an uncompleted contract of sale. On this basis, the cases are not distinguishable.

    43 It is submitted on behalf of Mrs Sgargetta that the two cases of NAB v Bridge Wholesale Acceptance Corporation (Australia) Ltd[13] and Kerrabee Park Pty Ltd v Daley,[14] where the caveat was lodged by a subsequent legal or equitable mortgagee of the land, in circumstances where the prior first registered mortgagee was entitled to first payment out of the proceeds of the proposed mortgagee sale of the land, are distinguishable from the present case.[15] This is because in the present circumstances, Mrs Sgargetta claims an interest in the whole land, in the form of the caveat, rather than an interest as a mortgagee.[16]

    44 The bank’s reference to these two cases supports their submission that the registered mortgagee’s interest has priority over a subsequent equitable interest in the form of a caveat[17] and that a mortgagee is entitled to an order for the removal of a caveat.[18] The bank’s reference to these cases is to establish the legal principle, regarding priority of interests between a subsequent caveatable interest and a prior registered mortgage, to support their argument that the bank’s interest takes priority over Mrs Sgargetta’s.

    45 The difference in the facts of the case do not render them distinguishable as the legal principle, regarding priority of interests (rather than the nature of the interests), is still relevant.

    46 In Vukicevic v Alliance Acceptance Co Ltd,[19] the interest granted was not an interest in the whole land, or an entitlement to become registered proprietor of it, but a non-exclusive profit a prendre in equity.[20] On behalf of Mrs Sgargetta, it is submitted that this is distinguishable as Mrs Sgargetta will, conditional upon paying the balance of the purchase price under her Contract of Sale, be entitled to a transfer of a registrable estate of fee simple over the entire property.

    47 The bank’s reliance on this case was in reference to Warren J (as she then was) noting the approach adopted by the New South Wales Court of Appeal who considered that a registered mortgage has priority over a subsequent equitable interest claimed in a caveat and that it was not until after the registration of the mortgage that any caveatable interest could have arisen.[21]

    48 Therefore, the case is not distinguishable as counsel for Mrs Sgargetta asserts. The legal principle of priority of interests remains relevant to the present proceeding.

    49 As discussed, accepting that Mrs Sgargetta purchased the property under an enforceable contract and that she has an equitable interest in the land which can be supported by the caveat, the Contract of Sale did not proceed. Even if it is accepted that the Contract of Sale remains on foot, which is somewhat questionable, given a period of six years has elapsed, any subsequent equitable caveatable interest which Mrs Sgargetta may have in the property is not one which will take priority over the bank’s registered legal interest. The fundamental principle set out in Law Mortgagees Queensland Pty Ltd, that the bank’s interest as registered mortgagee arose before the creation of any equitable interest in the caveat lodged by Mrs Sgargetta and the mortgage prevails and, accordingly, the caveat must be removed. The legal principle of priority of interests remains relevant to the present proceeding.

    50 It was submitted on behalf of Mrs Sgargetta that the caveat lodged by Mrs Sgargetta predates the plaintiff’s enforcement of its right in obtaining judgment for possession of the property and taking possession. It seems to me that this argument is misconceived. The bank’s registered interest, which enjoys the benefit of indefeasibility, in the absence of fraud, was established at the time it registered the mortgage on the property. The fact that enforcement proceedings were subsequently commenced is not relevant to the date at which the bank’s registered interest was created.

    51 In addition, even though Mrs Sgargetta submits that she is willing and able to complete the Contract of Sale with Mr Sgargetta, there is no evidence before this Court that it can or will be discharged. Ultimately, it may well be that Mrs Sgargetta can complete the Contract of Sale however, this will give her a right under the Contract of Sale with Mr Sgargetta. It does not provide a basis to give her an interest that has priority over the bank’s registered interest.

    52 In the circumstances, I do not consider that there is a serious question to be tried.

    Balance of convenience

    53 For completeness, even though not necessary given my finding that there is no serious question to be tried, in relation to the balance of convenience I consider that it favours removal of the caveat.

    54 It may well be that Mrs Sgargetta is still ready, willing and able to complete the Contract of Sale and that she desires the property be her parents’ residence in the future.

    55 There is no evidence before the Court of the parents’ intentions and there is nothing precluding Mrs Sgargetta and/or her parents from purchasing the property in due course when it is put on the market.

    56 It is submitted that the bank has not pointed to any prejudice it will suffer by removal of the caveat other than being delayed in being able to sell the property pursuant to its mortgage. The bank relies on Kerabee Park Pty Ltd v Daley[22] for the principle that a caveat would be readily removed on the application of a registered mortgagee who wishes to exercise the power of sale.

    57 I consider there is prejudice to a mortgagee where the presence of a caveat on its title is detrimental to the proper exercise of the statutory power of sale, due to the reduced marketability of the property and in circumstances where the caveator has no grounds for proceeding to restrain the registration of a transfer by the mortgagee.

    58 Further, the proposed amount to be paid under the Contract of Sale as discussed is insufficient to discharge the amount owed to the bank. Finally, although the Court does not reach the point, there is a complete failure by Mrs Sgargetta to proffer any security to pay into court the whole of the amount due under the mortgage.

    Order

    59 Accordingly, it follows that the plaintiff succeeds on its application and I will make declarations and orders as proposed in the bank’s summons dated 5 March 2015, subject to hearing the parties on the question of costs.

    - - -

    [1] [2002] VSC 491 (‘Goldstraw’).

    [2] Goldstraw [30] (footnotes omitted).

    [3] [2006] VSC 343; (2006) 14 VR 447.

    [4] Ibid [32] (footnotes omitted).

    [5] National Australia Bank Ltd v Bridge Wholesale Acceptance Corporation (Australia) Ltd (1990) 21 NSWLR 96, 102–3.

    [6] [1999] VSC 360 (Warren J) (as she then was) (‘Law Mortgagees Queensland Pty Ltd’).

    [7] Unreported, NSWCA (1987) CCH Aust & NZ Conveyancing Report, 270.

    [8] (1990) 21 NSWLR 96.

    [9] [1978] 2 NSWLR 222.

    [10] Law Mortgagees Queensland Pty Ltd, [13]–[14] (footnotes omitted).

    [11] Ibid [19]–[22].

    [12] Ibid [3].

    [13] (1990) 21 NSWLR 96.

    [14] [1978] 2 NSWLR.

    [15] Outline of Submissions of First Defendant [13].

    [16] Ibid [14].

    [17] Plaintiff’s Outline of Submissions for Removal of Caveat [17].

    [18] Ibid [20].

    [19] Unreported, NSWCA (1987) CCH Aust & NZ Conveyancing Report, 270.

    [20] Unreported, NSWCA (1987) CCH Aust & NZ Conveyancing Report.

    [21] Law Mortgagees Queensland Pty Ltd [13].

    [22] [1978] 2 NSWLR 222.

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    2 months ago
  • Charles Ponzi created a new topic ' Family law fees tactics under fire' in the forum.
    NATASHA BITA, Associate Editor, The Courier-Mail

    June 30, 2019 1:33pm
    Close
    COURIERMAIL1:27
    The Australian Family Court system is broken
    The 3 main ways the Family Court system lets down Aussie families.

    LAWYERS charging more than $28,000 a day in dirty Family Court battles are in the firing line as the Federal Government legislates to slash million-dollar legal costs.

    One Australian couple spent at least $4.5 million fighting over a $12 million property pool in a two-year Family Court battle, The Sunday-Mail can reveal.

    The Australian Law Reform Commission (ALRC) has warned that legal costs “routinely exceed $300,000 for each party and sometimes exceed $1 million” — particularly in Sydney, Brisbane and Melbourne.

    Now the Morrison Government will grant judges stronger powers to “fine’’ lawyers who deliberately drag out proceedings, by forcing them to personally pay their client’s legal bills — or the rival side’s costs — as punishment.

    How to save tens of thousands on your divorce

    Federal Attorney-General Christian Porter yesterday vowed to merge the Family Court with the Federal Circuit Court, and crack down on legal costs, once federal parliament resumes this week.

    He said families going through the Family Court were experiencing “one of the most traumatic periods of their lives’’.

    “It is incumbent on all involved within the court system to ensure that matters can be dealt with effectively, efficiently and as cheaply as possible,’’ he told The Sunday-Mail.

    “The reforms would allow a judge to make an order that a lawyer bear costs personally for failure to assist a client comply with the duty to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.

    “Doing so will assist Australian families spend less time in costly and protracted legal disputes.’’

    Mr Porter tried to merge courts but failed to push his reforms through a hostile Senate before the May election.

    He will now need the support of four crossbenchers in the new Senate, but is likely to win votes from Queensland’s two One Nation senators Pauline Hanson and Malcolm Roberts, who are pushing for family law reform.

    Federal Attorney-General Christian Porter has promised huge reforms to the Family Court. Picture: AAP/Richard Wainwright
    The ALRC also wants the government to abolish the existing law that makes each party pay their own costs in family law cases, to reduce “ambit claims that are sometimes made without fear of the consequences’’.

    ALRC president Sarah Derrington, who chaired the government’s 18-month review of family law, said some couples spent the entire asset pool on legal bills.

    She said judges must be prepared to “wield the big stick’’ to prevent lawyers driving up costs.

    “If a lawyer is seeking an adjournment on behalf of a client, both the client and the lawyer are expected to consider what effect that will have on any children,’’ Justice Derrington told The Sunday-Mail.

    “It depends on the judges then being prepared to wield the big stick they’ve been given.’’

    Justice Derrington has warned that divorce battles are creating a generation of damaged children, and called for state and territory governments to take over family law so that the same judges and magistrates consider custody, domestic violence and child abuse issues.

    READERS’ STORIES

    “I offered her $60,000 free of lawyers but her lawyer said he can get her the house. The washup: I lost $120,000, she got $40,000, our lawyers got $65,000.”

    – Husband

    “My son has been going to court for 10 years with no luck. It has cost him nearly $200,000 and he is now depressed.”

    – Grandmother

    “I have been in contact with the Family Court for nearly four years at a cost of $180,000 in legal fees.”

    – Mother

    “The court system has ruined my life. I had trouble seeing my daughter … three years into the system I lost my house, lost my business, my staff lost their jobs, I was forced into bankruptcy, I lost my super.”

    – Father

    “In the past two years I have spent $400,000 on defending my position in the Appeals Court. Fifteen minutes before the Full Court of Appeal I paid the ex-wife $108,000 extra - less than the $125,000 extra I offered in 2017 to settle before I spent the $400,000.”

    – Husband

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    2 months ago
  • Charles Ponzi created a new topic ' robodebt defenders free advice' in the forum.
    www.nssrn.org.au/
    National Social Security Rights Network Member Centres provide help to people who may have questions or difficulties with the social security system.

    Find a local service by selecting your state below.

    ACT | NSW | NT | QLD | SA | TAS | VIC | WA

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    2 months ago
  • Charles Ponzi created a new topic ' Pell's comp scheme QC costs' in the forum.
    www.theage.com.au/politics/victoria/reve...4VKvtcWOZqehjeqb1QBs

    The controversial scheme set up by George Pell to handle sex abuse claims against Melbourne’s Catholic Church spent almost as much money paying its independent commissioner as it did compensating hundreds of victims.

    The church’s own figures reveal that between 1996 and March 2014, the archdiocese spent $34.27 million to run its so-called Melbourne Response, but only $9.72 million – or 28 per cent of it – was used to compensate 307 child sex abuse victims.
    Former archbishop George Pell established the Melbourne Response in 1996.

    Former archbishop George Pell established the Melbourne Response in 1996.Credit:Nine

    The bulk of the money during that period was spent on other operational costs for the scheme, including $7.8 million to employ barrister Peter O’Callaghan, QC, as its independent commissioner, and a further $4.7 million on general legal fees.

    Mr O’Callaghan’s job was to determine the credibility of victims’ claims and make suggestions about what action to take against alleged abusers.

    Another $432,000 was used to fund the compensation panel that made recommendations about ex gratia payments, and $11 million was used to fund the church counselling service known as Carelink, most of which was spent on staff and administration.

    The figures, contained in a spreadsheet labelled “strictly confidential”, are the most up to date the archdiocese has ever been required to provide publicly. They were subpoenaed by the Royal Commission into Institutional Responses to Child Sexual Abuse as “supplementary information” and until now have been buried in thousands of documents that form part of the commission’s landmark inquiry.

    But as Pell awaits the outcome of his appeal over the historic sex abuse of a choirboy in 1996 – the same year he announced the Melbourne Response – the expenditure has reignited anger among those who have long argued the scheme was designed to minimise the church’s legal and financial liability.

    “These figures show how the Melbourne Response did more to benefit the people who designed it, rather than help the victims," said Jim Boyle, whose late brother, Gavan, was abused by Monsignor Penn Jones, a former archdiocese chaplain who would later become the chairman of the Catholic Church’s insurance company. "It was a racket."

    Under the Melbourne Response, the independent commissioner investigates allegations of abuse and makes a determination based on the evidence. Victims can then be referred to Carelink and/or the compensation panel.
    Jim Boyle, whose late brother, Gavan, was abused by Monsignor Penn Jones, says the Melbourne Response was more beneficial to those who designed it than victims and survivors.

    Jim Boyle, whose late brother, Gavan, was abused by Monsignor Penn Jones, says the Melbourne Response was more beneficial to those who designed it than victims and survivors.Credit:Eddie Jim

    But compensation payments were deliberately capped by the church – first at $50,000, and later lifted to $75,000 – and survivors were required to sign a deed of settlement waiving their right to take civil action.

    The archdiocese declined to respond when asked if it stood by the system, which is under review following the creation of a national redress scheme.

    However in a statement, Mr O’Callaghan, who retired in 2017, defended the initiative and said it would be "a big mistake to attribute the whole of the fees of $7.8 million to my dealing with complaints of child sexual abuse".
    Peter O'Callaghan, QC, gives testimony about the Melbourne Response at a Victorian parliamentary inquiry in 2013.

    Peter O'Callaghan, QC, gives testimony about the Melbourne Response at a Victorian parliamentary inquiry in 2013.Credit:Justin McManus

    "Leaving aside the substantial amounts of overhead expenses," he said, the fees also covered sexual and physical abuse complaints under the Melbourne Response, his participation in a Victorian parliamentary inquiry into vulnerable children, and the cost of "meeting the constant attacks upon the Melbourne Response generally and the Independent Commissioner in particular".

    "The Melbourne Response was world first innovation in dealing with the issue of clerical child abuse," Mr O'Callaghan said.

    "It was run fairly, efficiently and compassionately and provided a remedy for victims of clerical child sexual abuse, where none had previously existed. Whilst I was Independent Commissioner I dealt with complaints in the order of 400. Only 3 per cent of complaints were not accepted."

    The Melbourne Response was set up by then Archbishop George Pell in 1996 and continued by Denis Hart when he took over as Melbourne's archbishop in 2001.

    But critics have argued that the process lacked compassion: for instance, a 2015 study by Melbourne lawyer and advocate Judith Courtin for Monash University found that most of the people she interviewed ended up feeling "re-traumatised" by the experience.

    Jim Boyle, whose brother Gavan died in 2005 from lung cancer and self-imposed malnutrition, agreed. He believes Gavan’s abuse was compounded by the lack of psychological and pastoral support he received at Carelink that year, which was then under different management. The church, however, has previously rejected this.
    Related Article
    Sacrificial altar boy

    Other parts of the Melbourne Response have also come under scrutiny. The royal commission raised concerns that it was “not sufficiently independent” of the archdiocese, and that there was the “potential for conflict” given the church’s law firm, Corrs, were also the lawyers responsible for the scheme.

    It also found that Mr O’Callaghan provided advice to two victims that discouraged them from going to the police. One of those victims was Paul Hersbach, who was abused by Father Victor Rubeo in the 1980s. The other victim was known as Mr AFA and was repeatedly sexually abused as a teenager by Father Michael Glennon.

    Mr O’Callaghan testified that he felt he had an obligation to inform complainants about what might happen if they went to the police. But the commission wrote: “Having regard to Mr O'Callaghan QC’s defined role, this advice was not appropriate.”

    The archdiocese declined to comment when asked about the future of the Melbourne Response – noting that current archbishop Peter A. Comensoli was busy in Rome – and refused to provide updated figures on its expenditure.

    However, in February, the day after suppression orders for George Pell’s conviction were lifted, Archbishop Comensoli told ABC radio that he expected the Melbourne Response would likely “come to an end in due course” given a national compensation system was now in place.

    “I think most people, if they wish to seek a redress process, will go towards that rather than Melbourne Response,” he said.

    This email address is being protected from spambots. You need JavaScript enabled to view it.

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    2 months ago

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