NEW SOUTH WALES SUPREME COURT
Trio Capital Limited (Admin App) v ACT Superannuation Management Pty Ltd & Ors  NSWSC 286
19 March 2010
16 April 2010
Stephen James Parbery, Neil Singleton & Nicholas Martin in their capacity as Joint and Several Administrators of Trio Capital Limited (Administrators appointed) and others as defined in the schedule (Plaintiffs)
ACT Superannuation Management Pty Ltd (First Defendant)
Z. Rocksandic representing Millhouse IAG Private Equity Fund (Second Defendant)
R. & E. Thornton, trustees for Raid Provident Fund and representing ARP Growth Fund (Third Defendants)
G. & K. Kolsky, representing Asttar Portfolio Service (Fourth Defendants)
Silverhall Holdings Pty Ltd, representing MARQ Capital Diversified Property Fund (Fifth Defendant)
Huntley Management Pty Ltd, responsible entity of MillhouseIAG Private Equity Fund (Sixth Defendant)
LOWER COURT JURISDICTION:
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER:
A.S. Bell, R. Foreman (Plaintiffs)
I.M. Jackman SC (First Defendant)
Norton Rose (Plaintiffs)
Clayton Utz (First Defendant)
Addisons, submitting appearance (Second Defendant)
Kemp Strang, submitting appearance (Third Defendants)
Bartier Perry (Fourth Defendants)
A.J. Jefferies (Fifth Defendant)
Piper Alderman (Sixth Defendant)
CORPORATIONS ??“ MANAGED INVESTMENT SCHEME ??“ WINDING UP ??“ JUST AND EQUITABLE ??“ Responsible entity insolvent ??“ funds of Schemes probably lost in fraudulent investments ??“ Schemes inherently improvident ??“ considerations of public policy.
Corporations Act 2001 (Cth) ??“ s 168, s 436A, s 447D, s 601FS, s 601KA, s 601KB, s 601KE, s 601NC, s 601ND
Capelli v Shepard  VSCA 2
PWL Ltd, Re  WASC 232
Rubicon Asset Management Ltd, Re (2009) 74 ACSR 346
Schemes wound up on just and equitable ground.
2010/011359 Trio Capital Limited (Admin Appointed) v
ACT Superannuation Management Pty Ltd & Ors
16 April, 2010
1 On 19 March 2010, I made orders pursuant to s 601ND(1)(a) Corporations Act 2001 (Cth) (???the Act???) for the winding up of five managed investment schemes (???the Schemes???) for which the responsible entity is Trio Capital Limited (Administrators Appointed) (???Trio???). I said that I would give detailed reasons for my decisions as soon as practicable. These are my reasons.
2 Trio applied for an order pursuant to s 601ND of the Act directing it to wind up the Schemes on the just and equitable ground. In the alternative, the administrators of Trio (who are also the administrators of Astarra Funds Management Pty Limited (???AFM???) and ASI Administration Pty Limited (???ASI???) and the Plaintiffs in the proceedings) sought a direction pursuant to s 447D of the Act that they would be justified in winding up the Schemes pursuant to either s 601NC of the Act or the respective constitutions of each of the Schemes. (4a)
3 The Schemes that were the subject of this application were:
??“ Astarra Strategic Fund (???ASF???);
??“ Asttar Wholesale Portfolio Service (???AWPS???);
??“ Asttar Portfolio Service (???APS???);
??“ Astarra Overseas Equities Pool (???AOEP???); and
??“ ARP Growth Fund (???ARP Growth???).
4 These reasons draw heavily on the narrative of facts set out in the careful and thorough written submissions of the Administrators. However, I have added my own observations on inherent vices in the administration of the Schemes which constitute a grave risk to the security of the investors??™ money entrusted to them, much of it superannuation funds. These vices militate heavily in favour of winding up the Schemes in the public interest, so that whatever of their assets are now salvageable can be realised without delay and the Administrators, in conjunction with ASIC, can accelerate their investigation into how funds were lost and who is responsible for the losses.
5 Prior to the middle of December 2009, the Trio, AFM and ASI (collectively the Trio Companies) were involved in the business of funds management and administration in relation to both superannuation funds and non-superannuation investments through various managed investment schemes. There was a considerable degree of cross-investment amongst the schemes and superannuation funds.
6 Prior to 16 December 2009, Trio was:
??“ the holder of a Registrable Superannuation Entity Licence; and
??“ the trustee of five superannuation entities (???the Trio Super Funds???).
7 On 16 December 2009:
??“ APRA suspended Trio as trustee of the Superannuation Entities for a period of six months;
??“ ACT Superannuation Pty Ltd (ACT Super) was appointed as the acting trustee of the Trio Super Funds; and
??“ the Plaintiffs were appointed as voluntary administrators of Trio pursuant to s 436A of the Act.
8 Prior to 17 December 2009:
??“ Trio was the holder of an Australian Financial Services Licence (???AFS Licence???);
??“ Trio was the responsible entity for twenty-five managed investment schemes registered under the Act and the trustee of three unregistered managed investment schemes.
9 On 17 December 2009, ASIC suspended the AFS Licence held by Trio but specified that the licence continued in effect for certain limited purposes.
10 Trio remains the responsible entity of twenty-one registered managed investment schemes under Chapter 5C of the Act and the trustee of three unregistered managed investment schemes (???Trio MISs???).
11 On 8 January 2010, the Court ordered that the period within which the Administrators must convene the second meeting of creditors of the Trio Companies be extended up to and including 9 April 2010, that the second meeting of creditors be held at any time during the convening period (as extended) or the period five business days thereafter.
12 On 19 February 2010, the Court gave a s 447D direction in relation to the return of capital in the AWPS to permit ACT Super to make certain monthly pension payments.
13 On 26 February 2010, the Court:
??“ granted leave to file an application for the winding up of the Schemes; and
??“ ordered that notice of the application be given to all members of the Schemes by letter.
14 Notice of this application has been given to the unitholders of the Schemes as required by the orders of the Court.
15 ACT Super is the largest unitholder in AWPS and AOEP. ACT Super is also a unitholder in ASF, although there is uncertainty as to the number of units that ACT Super holds in ASF. ACT Super supports the application to wind up the Schemes of which it is a unitholder.
16 Section 601ND(1)(a) of the Act provides the Court may, by order, direct the responsible entity of a registered scheme to wind up the scheme if the Court thinks it is just and equitable to make the order. Trio, as responsible entity of the Schemes, has standing to apply for the order: s 601ND(2)(a).
17 In Re PWL Ltd  WASC 232, at , E.M. Heenan J said of the just and equitable ground in s 601ND(1)(a) of the Act:
???The phrase just and equitable is broad and designed to accommodate a multiplicity of situations. It is not possible to define the phrase in exhaustive terms. In each case it will be a question of fact for determination upon the evidence relating to the scheme or corporation put before the court: Re Tivoli Freeholds Ltd  VR 445 at 468; and Ebrahimi v Westbourne Galleries Ltd  AC 360 at 374. A determination of whether or not it is just or equitable to wind-up the entity will not depend upon particular factual categories: Re Straw Products Pty Ltd  VLR 222 at 223.???
18 However, his Honour accepted that:
?????¦ generally, it is just and equitable to order the winding-up of a registered managed investment scheme pursuant to s 601ND(1)(a) of the Act if it is insolvent: Re Orchard Aginvest Ltd (as responsible entity for the Primary Agribusiness Fund)  QSC 002. Further, it is just and equitable for the court to intervene and to wind-up a registered scheme where the original arrangement as set out in the prospectus of the scheme has broken down: ASIC v Knightsbridge  WASC 339 (at -).???
19 Similarly, in Re Rubicon Asset Management Ltd (2009) 74 ACSR 346;  NSWSC 1068 at , -, McDougall J said:
??? There is a number of decisions that make it clear that the court may order a managed investment scheme to be wound up on the just and equitable ground because the scheme is insolvent ??¦
 In addition, the court may wind up a managed investment scheme on the just and equitable ground if it is in the public interest to do so. See Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd  WASC 339. (4c)
 As Pullin J pointed out in that case, the public interest may justify the winding up of a managed investment scheme if the scheme has broken down or if the protection of investors requires that the scheme be wound up. ??¦
 In addition, a scheme may be wound up on the just and equitable ground if the responsible entity is insolvent, so that it cannot to continue to perform its functions, and (I think) if no responsible entity can be found to replace it.???
See also Capelli v Shepard  VSCA 2 at -, in particular at  and at -.
Facts common to the Schemes
20 The following matters are common to all of the Schemes:
??“ the responsible entity of the Schemes, Trio, is in administration;
??“ Trio appears to have a deficiency of assets (i.e. its liabilities are greater than its assets);
??“ at present, the Schemes have to bear both the issuer fees that Trio can charge the Schemes and also (to the extent the assets of Trio are insufficient) the costs and expenses of the administrators directly attributable to the administration of each Scheme;
??“ ASIC has suspended Trio??™s AFS Licence until 17 June 2010 (albeit that ASIC has specified that the AFS Licence continues in effect for certain purposes, in particular providing services ???of a kind that an entity appointed as a temporary responsible entity of a registered scheme might provide???. For example, Trio is not able to issue new units in any of the Schemes;
??“ none of the Schemes is a ???liquid??? scheme, as defined s 601KA of the Act, which means that Trio must not allow a unitholder to withdraw from any of the Schemes otherwise than in accordance with the relevant constitution and s 601KB to s 601KE of the Act;
??“ Trio has no employees and depends on AFM for all services. AFM is also in administration;
??“ no entity has indicated that it is willing to act as responsible entity of the Schemes. Section 601FS(1) of the Act provides that (subject to s 601FS(2), in particular s 601FS(2)(d)) ???If the responsible entity of a registered scheme changes, the rights, obligations and liabilities of the former responsible entity in relation to the scheme become rights, obligations and liabilities of the new responsible entity???. Given the problems referred to below, it is highly improbable that any reputable entity will agree to become the responsible entity of the Schemes.
Improvident schemes and the public interest
21 I have set out below in more detail the circumstances relevant to the particular Schemes. The reader will be struck by the frequency of the words ???purported??? and ???apparently??? and by the inability of the Administrators, despite their diligent investigations, to state their findings with any assurance. This is because so much of the activity of these Schemes has been deliberately cloaked in obscurity by the promoters. (4d)
22 A large proportion of the Scheme funds has not been used to acquire readily identifiable assets located in easily accessible jurisdictions. Rather, the funds have been invested in purchasing from an entity whose substance is impossible to ascertain an unsecured promise to deliver assets. Those assets comprise interests in investments whose existence, nature and value are, likewise, impossible to ascertain by any convenient means because they are managed or administered by companies incorporated in the British Virgin Islands, Anguilla, St Lucia, the Cayman Islands, Belize, the Cook Islands and Nevis. Anyone even slightly acquainted with the commercial world knows that if one wants to conduct financial operations as far away as possible from the scrutiny of tax authorities, investment regulatory authorities and investors themselves ??“ in short, if one wants to conduct financial operations dishonestly or illegally ??“ then it is to these jurisdictions that one goes to incorporate puppet companies with puppet directors in order to operate fraudulent schemes and to move money around the world in secrecy. (4d)
23 In this case, much of the money invested in the Schemes came from superannuation funds. The very prospect that a person??™s superannuation fund ??“ intended to provide for secure retirement ??“ could be invested in a scheme associated in any way with companies or entities incorporated or administered in jurisdictions such as the British Virgin Islands, Anguilla, St Lucia, the Cayman Islands, Belize, the Cook Island and Nevis would have sounded deafening warning bells to any responsible and competent financial adviser that there was a very high prospect that the funds would simply disappear into the ether ??“ as has almost certainly happened in this case. (4d)
24 Yet even a competent and responsible financial adviser would have heard no warning bells sounding for these Schemes. The Product Disclosure Statements for the ASF issued on 31 August 2009 and 28 September 2009 do not disclose that ASF funds were to be invested under a Deferred Purchase Agreement (???DPA???) in the purchase of ???Delivery Asset Parcels??? from a company called EMA International Limited (???EMA???), whose office is a post office box in Roadtown, Tortilla, in the British Virgin Islands, and whose sole director is a Canadian, Mr Marc Boudreau who, according to his lawyer, knows nothing about the administration of EMA. The Disclosure Statements do not disclose that EMA is ???administered??? by GCSL Limited, a company incorporated in Anguilla but apparently carrying on its activities in Hong Kong. They do not disclose that the Deferred Purchase Agreement with EMA, although replete with more than three dozen definitions occupying five closely typed pages, does not enable anyone to understand exactly what is comprised in a ???Delivery Asset Parcel???.
25 What the Product Disclosure Statements for ASF do state, however, is that:
???The investment strategy [for the Fund] is based on identifying and executing alternative approaches to traditional asset classes such as fixed income and equities. The Investment Managers multi-strategy/multi-asset style aims to achieve the most effective exposure to its desires [sic] strategies either directly or indirectly through underlying managers. The Fund may utilised Deferred Purchase Agreements in investing in underlying managers.???(4e)
26 That means no more or less than that the Fund can be invested in anything at all, no matter how foolish and risky ??“ and that, indeed, is what the Deed establishing the Fund provides in Clause 8.1 in permitting the fund manager to ???invest in anything it chooses ??¦ subject to what it tells investors from time to time (for example, in the scheme??™s disclosure statement???. What Trio told investors about ASF??™s investment strategy in the Product Disclosure Statements in August and September 2009 was nothing more than gibberish. (4e)
27 I make these observations because, as I noted at the beginning of this judgment, one of the reasons a managed investment scheme may be wound up on the just and equitable ground is that it is in the public interest to do so. A consideration of the public interest in relation to any particular scheme requires the Court to examine the purpose of the investment scheme, and to ascertain whether that purpose has broken down and become impracticable or, even if it has not broken down, whether the scheme ought to be terminated for the protection of its existing investors or for the protection of the public in the future. A scheme which solicits money from the public, including money from individuals??™ superannuation schemes, and invests those funds in ???assets??? which are not immediately and transparently identifiable and which cannot be valued by readily ascertainable and generally accepted measures is one which, in the public interest, ought to be wound up even if it is not demonstrably insolvent. Such a scheme is inherently improvident; it is an invitation to dishonesty by its promoters. The Court should not sanction its continuation.
28 A large amount of the funds of the other Schemes was invested directly or indirectly in ASF. ASF was said to be a ???fund of funds???, i.e. it was supposed to mirror the investment performance of various overseas hedge funds. The purported valuation of the ASF as at 31 August 2009 was approximately AUD$120 million. As at 16 December 2009 there were outstanding redemption requests against the ASF of AUD $114,413,760.
29 The returns of overseas hedge funds were supposed to be mirrored via the major ???asset??? of the ASF, namely a series of contractual rights to receive ???Delivery Assets??? arising pursuant to Deferred Purchase Agreements. The overseas hedge funds are referred to in the DPAs as the Underlying Funds.
30 The DPAs purported to operate under the terms of a Master Deferred Purchase Agreement dated 15 February 2006 (???Master DPA???). The counterparties to the Master DPA appear to have been:
??“ Astarra Asset Management Pty Limited (in liquidation) ACN 113 940 953 (???AAM???) as investment manager for the ASF; and
??“ EMA International Limited, a special purpose vehicle incorporated in the British Virgin Islands purportedly for the purpose of entering into the Master DPA and performing activities in connection with the Master DPA.
31 Pursuant to the DPAs, EMA gave a contractual promise to AAM (as investment manager for the ASF) to deliver assets corresponding to the value of the performance of the overseas hedge funds.
32 AAM is in liquidation. EMA is no longer administered by anyone. Prior to 5 November 2009, EMA??™s operations under the DPA were apparently administered by GCSL Limited, a company incorporated in Anguilla, pursuant to an Administration Agreement dated 20 July 2008 (???Administration Agreement???). By notice dated 5 November 2009, GCSL terminated the Administration Agreement.
33 The company secretary of EMA was Global Secretaries (HK) Ltd, a company incorporated under the laws of Hong Kong. Global Company Secretaries resigned from this role on 5 November 2009.
34 Since February 2006, the sole director of EMA appears to be a Canadian citizen called Marc Boudreau. In response to a request by the Administrators that Mr Boudreau make himself available for a meeting, EMA??™s (external) solicitor indicated that, on his understanding, ???it is unlikely to be of much assistance to you as in practice, EMA appointed GCSL Limited of Hong Kong to administer the whole of the operations under the Master Deferred Purchase Agreement and all the investments in the Underlying Funds were implemented by GCSL Limited personnel???.
35 While it was functional, EMA purportedly invested in the following Underlying Funds:
??“ Exploration Fund Limited, a fund apparently domiciled in St Lucia with an administrator and investment manager also apparently domiciled in St Lucia;
??“ Tailwind Investment Fund, a fund apparently domiciled in the Cayman Island with an administrator apparently domiciled in the Cayman Islands and AAM as its investment manager. AAM was appointed by Trio as its investment manager for the ASF. In that capacity, it was one of the parties to the Master DPA. That is, it appears that AAM has caused funds from ASF to be invested in an Underlying Fund managed by AAM;
??“ SBS Dynamic Opportunities Fund Limited, a fund apparently domiciled in the Cayman Islands with an administrator apparently domiciled in Belize and an investment manager apparently domiciled in the Cayman Islands;
??“ Pacific Capital Markets Cayman LDC, a fund apparently domiciled in the Cayman Islands with an administrator apparently domiciled in the Cook Islands and an investment manager apparently domiciled in Nevis;
??“ Atlantis Capital Markets Cayman LDC, a fund apparently domiciled in the Cayman Islands with an administrator apparently domiciled in the United States and an investment manager apparently domiciled in the Cayman Islands.
36 The Administrators??™ investigations strongly suggest that EMA??™s ???investment??? in the Underlying Funds is a fraudulent scam. For example:
??“ Mr Frank Richard Bell (Mr Bell) is a director of Exploration Fund Limited. Mr Bell has been the subject of disciplinary action by the United States Financial Industry Regulation Authority which resulted in a number of sanctions and adverse findings against him;
??“ Atlantis was struck from the Cayman Island register of companies as at 31 December 2003 (well before EMA purportedly invested in it);
??“ prior to the appointment of the Administrators, Trio attempted unsuccessfully to obtain audited financial accounts from Exploration Fund Limited as at 30 June 2009. The auditor appointed to audit the Fund, Lichter Yu & Associates, withdrew from the audit;
??“ none of EMA, AAM or the Underlying Funds have provided valuations for the Underlying Funds or the assets held by the Underlying Funds since 3 September 2009;
??“ on 31 October 2009, 3 of the 5 Underlying Funds (namely Exploration Fund Limited, SBS Dynamic Opportunities Fund and Pacific Capital Markets Cayman LDC) notified EMA that they had resolved to suspend trading and to initiate steps to proceed with a compulsory redemption EMA??™s interest in the Fund. The notifications are in virtually identical form; they state ??“ apparently as one of the reasons for the compulsory redemption ??“ that it had come to the attention of the Underlying Funds that there was an investigation by ASIC, which had resulted in considerable media attention;
??“ since receipt of the written notifications, there has been no indication as to when the proceeds of the redemptions will be paid.(4h)
37 ASIC is continuing to investigate the ASF with the assistance of overseas regulators. However, the current status of ASIC??™s investigations are unknown.
38 In summary, the Administrators have not been unable to determine whether the supposed investments of the Underlying Funds actually exist and whether the investments in the DPA contracts are recoverable.
39 ACT Super (which holds over 92% of the units in AWPS) has requested the administrators to make an application to wind up the AWPS. The circumstances of AWPS, so far as they are presently known, are as follows.
40 Over 6% of the units in AWPS are held by APS (APS being one of the Schemes that is the subject of this application).
41 At least 35.3% of the total assets of AWPS are unlikely to be realised for book value. In particular:
??“ AWPS holds 9,306,000 units in the ASF (representing 13.7% of the total unitholding of the ASF). For the reasons set out above, the value of its unitholding in the ASF is unknown;
??“ AWPS has investments in Ualan Property Holdings Pty Ltd (UPH) with a book value of $9,054,000 and loans to UPH with a book value of $4,722,037. The true value of these investments and loans appears to be considerably lower.
??“ UPH is a property investment and development company that has seven current property development projects operated through separate special purpose vehicle companies. Of the existing developments, five have reached practical completion and sales have commenced whilst two consist of vacant land yet to be developed.
??“ All UPH projects have separate external financiers with total exposure of approximately $28 million as at end December 2009. UPH is reliant upon its shareholders, including AWPS, for funding to meet its monthly holding costs. For example:
on or about 18 February 2010, following agreement with ACT Super, $80,000 was advanced to UPH to meet immediate costs which, if not paid, could have reduced significantly the recoverable value of one of the developments;
on or about 1 March 2010, following agreement with ACT Super, a further amount of $175,000 was advanced to UPH to meet interest payments for February 2010 to the secured creditors of the properties to ensure that UPH did not default in its obligations to those secured creditors;
42 AWPS holds units in Millhouse Private Equity Trust No 1 (???MPET#1???) with a book value of $1,726,000 and units in Millhouse Private Equity Trust No 2 (???MPET#2???) with a book value of $1,726,000. The trustee of MPET#1 is Astarra Nominees (Australia) Pty Ltd (Nominees). The trustee of MPET#2 is Astarra Securities Pty Ltd (???Securities???). AFM is a shareholder in both Nominees and Securities and Millhouse IAG Limited is the investment manager of MPET#1 and MPET#2.
43 MPET# 1 and MPET#2 have invested equally in five overseas entities which appear to be primarily pharmaceutical research and development companies and telecommunication companies. One of those entities was placed into the German equivalent of receivership by its management in 2009 and appears to have no assets. Another of those entities is currently under external administration.
44 On 12 May 2009, Trio issued a request to redeem 7.4 million of the units for each trust. The redemption request was issued to Millhouse IAG Limited. That redemption request was deferred for a period of up to twenty-four months as allowed under the Constitution of each fund on the basis that it would be detrimental to other unit holders.
45 AWPS also owns 57.6% of the units in the AOEP (which is another one of the Schemes that is the subject of this application). As shown below, the investments of the AOEP consist predominately of units held in both ASF, MPET#1 and MPET#2.
The investments of the APS consist of over 6% of the units in AWPS and cash in the amount of approximately $75,000. Accordingly, the uncertainty as to the value of the AWPS assets directly affects the value of the AWPS assets.
46 ACT Super (which holds at least 30% of the units in AOEP) has requested the administrators to make an application to wind up the AOEP.
47 Over 57% of the units in AOEP are held by AWPS. The investments of the AOEP consist predominately of units held in both MPET#1 and MPET#2, together with units in the ASF. For the reasons given above, the value of those assets cannot presently be ascertained.
48 The assets of the ARP Growth consist of the following, the majority of which appear to be wholly or partly irrecoverable:
??“ a loan to Ualan Property Pty Ltd with a current balance of $501,812 which appears to be irrecoverable;
??“ a direct investment in Professional Pension ARP Limited (PPARP) (a fund manager in the British Virgin Islands) with a book value of $3,011,212; and
??“ units in the ARP Sub-Trust No. 1 with a book value of $54,779,660. The ARP Sub-trust No 1 has the following investments:
a direct investment in PPARP with a book value of $49,464,000;
a direct investment in Ualan Property Trust (formerly the MARQ Property Trust) with a book value of $1,575,000;
a secured loan to AAM with a book value of $1,007,000;
a direct investment in ASF;
cash holdings of $42,000.
49 PPARP represents, directly or indirectly, the majority of the assets of ARP Growth. PPARP is abut to be placed in liquidation ??“ if this has not already occurred.
50 In summary:
??“ there are strong reasons to believe that a substantial part of the funds of AFS were invested fraudulently and have been lost;
??“ the other four Schemes have substantial investments, direct and indirect, in AFS;
??“ Trio, the responsible entity for all Schemes, is almost certainly insolvent and cannot continue to conduct business;
??“ it is improbable that any substantial and reputable financial institution will agree to replace Trio as responsible entity for the Schemes;
??“ the major unitholder, directly and indirectly, in the Schemes desires their winding up;
??“ the Schemes cannot continue in operation and it is in the interests of their investors that the remaining assets be realised and distributed as quickly as possible;
??“ it is in the public interest that inherently flawed and improvident Schemes be terminated, and that investigations into their losses be accelerated. 4(g)
51 For these reasons, I made the orders winding up the Schemes on the just and equitable ground. (4f)
??“ oOo ??“
16 April 2010