FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 17 December 2019
On 21 November 2019, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 May 2019 to 31 October 2019. The Notice to the Members of the LM First Mortgage Income Fund (Receiver Appointed) with respect to that application together with a copy of the application and supporting material can be found below.
- Notice to Members of the Receiver’s Court application for remuneration approval (0.3 MB)
- Application for approval of remuneration filed on 21 November 2019 (1.6 MB)
- Affidavit of David Whyte sworn and filed on 21 November 2019 (8.9 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte filed 21 November 2019 (22.1 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte filed 21 November 2019 (17.1 MB)
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 2 July 2019
On 6 June 2019, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 November 2018 to 30 April 2019. The Notice to the Members of the LM First Mortgage Income Fund (Receiver Appointed) with respect to that application together with a copy of the application and supporting material can be found below.
- Notice to Members of the Receiver’s Court application for remuneration approval (0.1 MB)
- Application for approval of remuneration filed on 6 June 2019 (2.3 MB)
- Affidavit of David Whyte sworn and filed on 6 June 2019 (15.6 MB)
- Exhibit to the Affidavit of David Whyte filed 6 June 2019 (10.1 MB)
- Affidavit of Gerald Collins sworn on 17 June 2019 (4.1 MB)
- Notice to Members dated 18 June 2019 (0.1 MB)
The hearing for the remuneration application of the Court Appointed Receiver took place on 2 July 2019. The court approved the remuneration sought of $1,248,853.10 (inclusive of GST) in respect of work undertaken in dealing with FMIF during the period from 1 November 2018 to 30 April 2019. A copy of the order made on 2 July 2019 is available below:
Application filed on 1 February 2019 for directions in relation to settling Supreme Court of Queensland Proceedings 13534 of 2016 (“the Feeder Fund Proceedings”) on the terms set out in a Deed of Settlement and Release
TAKE NOTICE that David Whyte, as the person appointed pursuant to section 601NF of the Corporations Act 2001 (Cth) to take responsibility for ensuring that the FMIF is wound up in accordance with its constitution and as receiver of the property of the FMIF (Mr Whyte), has applied to the Supreme Court of Queensland for directions whether he is justified:-
- in settling Supreme Court of Queensland Proceedings 13534 of 2016 (“the Feeder Fund Proceedings”) on the terms set out in a Deed of Settlement and Release as varied by a Deed of Variation (“the Deed of Settlement”);
- in causing LM Investment Management Limited (in liquidation) (LMIM) as responsible entity of the FMIF (receiver appointed) to enter into and perform the Deed of Settlement.
The application filed 1 February 2019 has been listed for hearing before Mullins J on the civil list on 2 May 2019.
The supporting material can be found below:
The Notice to the Members of the LM First Mortgage Income Fund (Receivers and Managers Appointed) (Receiver Appointed) in relation to that application together with a copy of the application and supporting material can be found below. Access to the documents below requires a password which was emailed or posted to your preferred mailing address. If you require assistance, please contact BDO on (07) 3237 5999 or email enquiries@lmfmif.com.au.
The decision was reserved following the hearing on 2 May 2019 with judgement subsequently delivered on 22 May 2019. A copy of the orders made and judgement are provided below.
Application filed on 1 February 2019 for directions in relation to making an interim distribution to the members of the FMIF and to determine the proper entitlements of members holding “Class C” Units in the FMIF
TAKE NOTICE that David Whyte, as the person appointed pursuant to section 601NF of the Corporations Act 2001 (Cth) to take responsibility for ensuring that the FMIF is wound up in accordance with its constitution and as receiver of the property of the FMIF (Mr Whyte), has applied to the Supreme Court of Queensland:-
- for authority to make an interim distribution from the property of the FMIF of up to $40 million among the members of the FMIF;
- to determine the proper entitlements of members holding “Class C” Units in the FMIF, having invested in one of the “Non-Australian Dollar Currency Hedged Fixed Term Investment Options”.
This application is set down to be heard by the Supreme Court of Queensland at Brisbane on 13 March 2019 at 10:00 am.
The Notice, together with a copy of the application and supporting material can be found below:
- Notice to FMIF members dated 14 February 2019 (0.5 MB)
- Application Filed 1 February 2019 (1.8 MB)
- Affidavit of Alexander Philip Nase sworn 6 February 2019 (0.8 MB)
- Orders of Jackson J delivered 7 February 2019 (2.0 MB)
- Affidavit of David Whyte sworn 18 February 2019 (2.0 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte (10.5 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte (10.5 MB)
- Exhibit Volume 3 to the Affidavit of David Whyte (10.5 MB)
- Affidavit of David Whyte sworn on 5 March 2019 (4.2 MB)
- Written submissions for hearing 13 March 2019 on behalf of Receiver (0.4 MB)
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 29 November 2018
On 14 November 2018, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 May 2018 to 31 October 2018 together with his remuneration for work undertaken in respect of the Controllership appointments for the period 1 May 2018 to 31 October 2018. The Notice to the Members of the LM First Mortgage Income Fund (Receivers and Managers Appointed) (Receiver Appointed) with respect to that application together with a copy of the application and supporting material can be found below.
- Notice to Members of the Receiver’s Court application for remuneration approval (0.1 MB)
- Application for approval of remuneration filed on 14 November 2018 (1.1 MB)
- Affidavit of David Whyte sworn on 13 November 2018 and filed on 14 November 2018 (8.5 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte filed 14 November 2018 (20.0 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte filed 14 November 2018 (28.5 MB)
- Exhibit Volume 3 to the Affidavit of David Whyte filed 14 November 2018 (22.7 MB)
- Supplementary Affidavit of David Whyte sworn on 16 November 2018 and filed 18 November 2018 (1.5 MB)
The hearing for the remuneration application of the Court Appointed Receiver took place on 29 November 2018. The court approved the remuneration sought of $1,946,635.35 (inclusive of GST) in respect of work undertaken in dealing with FMIF during the period from 1 May 2018 to 31 October 2018. In addition, the court approved the remuneration sought of $20,902.75 (inclusive of GST) in respect of the work undertaken on the controllerships during the period 1 May 2018 to 31 October 2018. A copy of the order made on 29 November 2018 is available below:
Application by Mr Park for directions in relation to the dual appointments to wind up the FMIF (“the Application”)
On 10 October 2018, Mr Park filed an application in Supreme Court of Queensland Proceeding 3508/15 seeking, among other things, orders or directions to the following general effect:
- Directions in relation to the dual appointments of Mr Park (the Liquidator) and myself (the Receiver) to wind up the FMIF, including that my appointment to supervise the winding up of the FMIF continue only in relation to certain specified legal proceedings and the Liquidator take responsibility for ensuring that the FMIF is wound up in accordance with its Constitution;
- That the Liquidator is directed to act as contradictor to the Breach of Trust Proceeding (Supreme Court of Queensland No 11560/2016) and the Feeder Fund Proceeding (Supreme Court of Queensland No 13534 of 2016);
- That the Liquidator and Receiver each submit a budget of remuneration and expenses to the conclusion of the winding up of the FMIF, that the remuneration of the Liquidator and the Receiver be fixed or determined on the hearing of the application in the amount of 50% of the amount of stated in the relevant Budget, and paid during the course of the winding up, with all other remuneration and expenses of the Liquidator and the Receiver to be deferred and sought at the conclusion of the winding up at which time the amounts stated in the Budgets can be reduced, increased or stay the same;
- That the costs of the Application be paid from the FMIF and other funds in such proportions as may be just.
Copies of documents relevant to the above proceeding are below:
- Application Filed 10 October 2018 (1.3 MB)
- Notice to FMIF members dated 8 November 2018 (“the Notice”) (0.3 MB)
- Further notice to members of hearing date (0.1 MB)
- Affidavit of John Park sworn 12 November 2018 (4.1 MB)
- Affidavit Exhibit Part 1 of 4 (11.5 MB)
- Affidavit Exhibit Part 2 of 4 (6.2 MB)
- Affidavit Exhibit Part 3 of 4 (8.0 MB)
- Affidavit Exhibit Part 4 of 4 (6.2 MB)
- Affidavit of David Whyte sworn 16 November 2018 (5.8 MB)
- Orders of Jackson J delivered 19 November 2018 (1.5 MB)
- Affidavit of Kelly-Anne Lavina Trenfield sworn 28 November 2018 (10.5 MB)
- Affidavit of David Whyte sworn on 3 December 2018 (2.5 MB)
- Affidavit Exhibit Part 1 of 3 (9.2 MB)
- Affidavit Exhibit Part 2 of 3 (7.3 MB)
- Affidavit Exhibit Part 3 of 3 (4.2 MB)
- Affidavit of Julian Thomson Walsh sworn on 6 December 2018. (12.5 MB)
- Affidavit of David Whyte sworn on 7 December 2018 (1.0 MB)
- Affidavit of Said Jahani sworn on 7 December 2018 (1.3 MB)
- Affidavit of David O’Farrell sworn on 7 December 2018 (1.5 MB)
- Affidavit of Julian Thomson Walsh sworn on 7 December 2018 (2.3 MB)
- Affidavit of Phillip Ryan sworn on 7 December 2018 (0.2 MB)
The application is set down for a final hearing on 10 December 2018, in the Supreme Court of Queensland. The members of FMIF are not respondents to the application but any member is entitled to be heard in the application if they wish.
Members should read the Notice and the Application for full details of the orders or directions sought and the steps to be taken by any member that wishes to appear.
Further information can be found at https://www.lminvestmentadministration.com
Notice to Members
TAKE NOTICE that John Richard Park, the Liquidator of LMIM, has applied to the Supreme Court of Queensland for the determination and fixing of the Liquidators’ remuneration. A copy of the application and notice issued to members of the FMIF is below:
- Application filed on 17 July 2018 (4.8 MB)
- Notice to Members dated 27 July 2018 (0.1 MB)
Please note that there is a typographical error in the fax number of Russells in the Notice to Members. The correct fax number for Russells is +61 7 3004 8899.
Further information can be found at https://www.lminvestmentadministration.com.
To the members of the LM Currency Protected Australian Income Fund ARSN 110 247 875 (Receiver Appointed)(“CPAIF”) and the members of the LM Institutional Currency Protected Australian Income Fund ARSN 111 052 868 (Receiver Appointed)(“ICPAIF”)
TAKE NOTICE that David Whyte, the person appointed pursuant to section 601NF(1) of the Corporations Act 2001 (Cth) to take responsibility for ensuring that THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288 (Receivers and Managers Appointed) (Receiver Appointed) (“FMIF”) is wound up in accordance with its constitution, has applied to the Supreme Court of Queensland including for declarations that:
- would, depending on the amount ultimately available for distribution in the winding up of the FMIF, have the effect of reducing or eliminating any distribution to be paid to the CPAIF and the ICPAIF, to the extent of the value of redemptions that were allowed in favour of the Class B unitholders between 11 May 2009 and 31 January 2013 without power and in breach of trust, as adjusted for any overpayment or underpayment of capital distributions made in February and June 2013;
- would adjust the number of units held by the CPAIF and the ICPAIF in the FMIF to reinstate those units, but also to cancel further units in the FMIF issued to the CPAIF and the ICPAIF between 1 July 2011 and 1 November 2012 without power and in breach of trust.
Following the hearing of an application in the above proceedings on 29 May 2018, orders were made on 13 June 2018 (the 13 June 2018 Orders) that, inter alia, the parties to the proceedings engage in a mediation on a date to be agreed and to be completed by 28 September 2018.
In accordance with order 18 of his Honour Justice Jackson’s Orders dated 13 June 2018, notice is hereby given to the members of the CPAIF and the ICPAIF of the Orders of his Honour Justice Jackson dated 4 September 2018 (the 4 September 2018 Orders).
The 4 September 2018 Orders amend the 13 June 2018 Orders by providing for mediation to take place on 5 and 6 November 2018.
Any member has a right to apply to the Court if they wish to be heard in the proceeding or to be represented in the mediation.
Any member who wishes to know more about the proceedings and the proposed mediation in the proceedings, including if the member wishes to request any material relating to the mediation, should contact the solicitors for the receiver of the CPAIF and the ICPAIF, Messrs. David O’Farrell of HWL Ebsworth, on +61 7 3169 4844.
Copies of documents relevant to the above are below:
- Orders of Jackson J delivered 4 September 2018 (Sealed) (0.18 MB)
- Orders of Jackson J delivered 13 June 2018 (Sealed) (0.8 MB)
Application by LMIM and its liquidators for indemnity for expenses from the assets of the FMIF
On 16 May 2016, LMIM as Responsible Entity of the FMIF and the Liquidators of LMIM (Mr Park and Ms Muller of FTI), filed an Application (“the Application“) for orders concerning payment of certain costs and expenses for which LMIM claims indemnity from the assets of the FMIF.
David Whyte applied to the Court for Directions as to whether he is justified in, amongst other things, responding to the Application by raising certain matters, including the ‘clear accounts’ rule. On 30 May 2017, Burns J directed that Mr Whyte is justified in raising the clear accounts rule, in response to the Application, in relation to certain identified claims against LMIM.
The Application was heard on 19 and 20 June 2017 and the decision was reserved. Judgement was delivered on 17 October 2017 and a copy of the judgement is included below.
The Application and supporting Affidavits, the orders of Burns J, the affidavits to be relied upon by Mr Whyte in response to the application and the judgement are below:
- Application filed 20 May 2016 (0.7 MB)
- Affidavit of John Park sworn 18 October 2016 (16.5 MB)
- Order of Jackson J 16.02.17 (0.2 MB)
- Affidavit of John Park with JRP-6 sworn 08.03.17 (2.4 MB)
- Application by Respondent D Whyte 09.03.2017 (0.3 MB)
- Notice to Members of the FMIF (0.1 MB)
- Affidavit of David Schwarz sworn 16 February 2017 with DHS-1 to DHS-22 (3.4 MB)
- Affidavit of David Whyte sworn 29 May 2017 with Exhibit Volume 1 DW-39 to DW-41 (8.0 MB)
- Exhibit Volume 2 DW-42 to DW-48 to Affidavit of David Whyte 29 May 2017 (10.8 MB)
- Exhibit Volume 3 DW-49 to DW-62 to Affidavit of David Whyte 29 May 2017 (8.8 MB)
- Exhibit Volume 4 DW-63 to DW-73 to Affidavit of David Whyte 29 May 2017 (6.4 MB)
- Affidavit of Eric Leeuwendal sworn 29 May 2017 (12.1 MB)
- Orders of Burns J 30 May 2017 (0.9 MB)
- Affidavit of David Whyte sworn 7 June 2017 with DW-74 to DW-89 (5.8 MB)
- Affidavit of David Whyte sworn 7 June 2017 with DW-1 to DW-26 (16.6 MB)
- Affidavit of David Schwarz sworn 8 June 2017 with DHS-43 (9.9 MB)
- Judgement of Jackson J delivered 17 October 2017 [2017] QSC 230 (0.4 MB)
- Orders of Justice Jackson Dated 22 November 2017 – Indemnity (1.2 MB)
Important Notice to Members
On 15 March 2018, the Australian Securities and Investments Commission, on my application, issued instrument 18-0166 under subsections 111AT(1) and 601QA(1) of the Corporations Act 2001 granting LM Investment Management Limited (in liquidation) (receivers and managers appointed), in its capacity as responsible entity of the LM First Mortgage Income Fund (receiver appointed) (“FMIF”) an exemption from compliance with its obligations under:
- the disclosing entity provisions in Part 2M.3 of the Act in relation to a financial year or half year of the FMIF;
- section 601HG of the Act in relation to a financial year of the FMIF.
The exemption applies during the period ending on 16 March 2020. A notice explaining the instrument of relief and a copy of the instrument can be found below.
- Notice Explaining Instrument of Relief (1.6 MB)
- ASIC Instrument (0.1 MB)
Court Application by the Liquidators of the Responsible Entity of the LM First Mortgage Income Fund (‘LMIF’) on residual powers and remuneration
TAKE NOTICE that John Richard Park and Ginette Dawn Muller, the liquidators of LM Investment Management Limited (in liquidation) (receivers and managers appointed)(LMIM) ACN 077 208 461, the responsible entity of the FMIF, and LMIM have applied to the Supreme Court of Queensland in proceeding no. 3508 of 2015 for directions and orders in relation to the extent of their powers and responsibilities as such liquidators and in respect of their remuneration as such liquidators, in relation to the winding up of the FMIF and LMIM.
The Notice to the Members of the LM First Mortgage Income Fund (Receivers and Managers Appointed) (Receiver Appointed) with respect to that Application together with a copy of the application and supporting material can be found below.
- Notice to Members of Application by J Park & G Muller (per Annexure A to Order 7 May 2015) (117 kB)
- The Original Application filed 8 April, 2015 (170 kB)
- Interlocutory Application dated 29 April 2015 and Accompanying Statement (252 kB)
- Sealed copy order of Justice Jackson 8 May 2015 regarding the Originating Application filed 8 April 2015. (125 kB)
- Affidavit of Stephen Charles Russell, filed on 8 April, 2015 (1.6 MB)
- Affidavit of John Richard Park, filed on 22 April, 2015 (332 kB)
- Affidavit of Sean Charles Russell, filed by leave on 7 May, 2015 (3.7 MB)
- Order dated 8 May 2015 regarding the original application filed 8 April, 2015 (115 kB)
- Affidavit of John Park, filed on 11 June 2015 (36 kB)
- Affidavit of David Whyte, filed on 12 June 2015 (3.4 MB)
- Exhibit 'DW1' pages 1 – 192 to Affidavit filed 12 June 2015 (50.2 MB)
- Exhibit 'DW1' pages 193 – 344 to Affidavit filed 12 June 2015 (25.0 MB)
- Exhibit 'DW1' pages 345 – 479 to Affidavit filed 12 June 2015 (31.6 MB)
- Exhibit 'DW1' pages 480 – 602 to Affidavit filed 12 June 2015 (25.9 MB)
- The Outline of the Submissions of David Whyte, Respondent, filed on 7 May 2015 (0.9 MB)
- Affidavit of Sean Charles Russell sworn 26 June 2015 and filed on 29 June 2015 (6.5 MB)
- Notice of Appearance of David Whyte, Respondent, filed on 30 June 2015 (0.3 MB)
- Affidavit of David Heiner Schwarz sworn on 29 June 2015 and filed on 30 June 2015 (1.4 MB)
- Applicants’ outline of submissions 8 July 2015, filed 15 July 2015 (0.4 MB)
- Respondent’s outline of submissions dated and filed 16 July 2015 (0.3 MB)
- Amended Originating Application dated 20 July 2015 (2.5 MB)
- Affidavits of:-
- Ashley Richardson dated 17 July 2015; (0.5 MB)
- Nicole Jackson dated 17 July 2015; (0.3 MB)
- Wayne McKay dated 17 July 2015; (0.3 MB)
- Dermot O’Brien dated 16 July 2015; and (0.2 MB)
- John Somerville dated 20 July 2015; (0.3 MB)
- The reasons for judgment of Jackson J dated 15 October 2015 (0.4 MB)
- Order of Jackson J dated 12 November 2015 (unsealed) (0.1 MB)
- Order of Jackson J dated 2 December 2015 (unsealed) (0.1 MB)
- Applicants’ outline of submissions dated 17 December 2015 (0.3 MB)
- Respondent’s outline of submissions dated 17 December 2015 (0.2 MB)
- Affidavit of Sean Russell filed with leave on 17 December 2015 (6.1 MB)
- Order of Jackson J dated 17 December 2015 (2.5 MB)
- Orders of Justice Jackson Dated 22 November 2017 (1.5 MB)
A Further Amended Originating Application (“the Further Application”) has been filed in the Supreme Court of Queensland proceeding 3508 of 2015, by LM Investment Management Limited (In Liquidation) (“LMIM”), and the liquidators of LMIM, John Park and Ginette Muller. The Further Application seeks orders concerning (among other things) the remuneration of Mr Park and Ms Muller.
The Further Application was heard on 22 February 2016 and 14 March 2016. The decision was reserved and judgement was delivered on 17 October 2017.
A copy of the Further Application and other material in relation to the proceedings, the Notice to members of the FMIF about the Further Application and a copy of the judgement are available below.
- Further Amended Originating Application dated 16 December 2015 (0.6 MB)
- Notice to Members in respect of Further Amended Originating Application dated 18 January 2016 (0.2 MB)
- Affidavit of John Park sworn 28 January 2016 (11.9 MB)
- Affidavit of John Park Volume 1 – pages 1 to 279 (4.5 MB)
- Affidavit of John Park Volume 2 – pages 280 to 519 (4.9 MB)
- Affidavit of John Park Volume 3 – pages 520 to 828 (10.3 MB)
- Affidavit of John Park Volume 4 – pages 829 to 1102 (12.4 MB)
- Notice to Members in respect of the Affidavit of John Park sworn 28 January 2016 (0.1 MB)
- Affidavit of David Whyte sworn 19 February 2016 (2.5 MB)
- Affidavit of David Whyte Exhibits DW-2 to DW-11 (10.0 MB)
- Affidavit of David Whyte Exhibits DW-12 to DW-34 (5.9 MB)
- Affidavit of John Park sworn 22 February 2016 (9.3 MB)
- Applicants’ Statement of Facts dated 22 February 2016 (0.6 MB)
- Affidavit of John Park sworn 8 March 2016 (0.8 MB)
- Exhibit JRP-3 (part 1 of 2) (3.4 MB)
- Exhibit JRP-3 (part 2 of 2) (6.6 MB)
- Affidavit of David Whyte sworn 11 March 2016 (2.8 MB)
- Judgement of Jackson J delivered 17 October 2017 [2017] QSC 229 (0.6 MB)
Further documentation will be uploaded to this website as it becomes available.
Appointment of Court Appointed Receiver
Pursuant to an Order of the Supreme Court of Queensland on 8 August 2013, David Whyte of BDO was appointed Receiver of the LM First Mortgage Income Fund (‘FMIF’) and to take responsibility for the winding-up of FMIF in accordance with its constitution. A copy of the Court Order and Judgement is available below.
Sealed order of the Supreme Court of Queensland on 21 August 2013 (381 kB)
Judgement of Justice Dalton delivered on 8 August 2013 (2.6 MB)
On 20 December 2013 the Queensland Supreme Court made orders in relation to the costs of these proceedings. It ordered that:
- Trilogy Funds Management Ltd pay 7% of LM Investment Management Ltd (in Liquidation) (Receivers and Managers Appointed) (“LMIM”) costs of the proceeding; and
- LMIM is to be indemnified from the FMIF only to the extent of 20% of its costs of the proceeding.
LMIM also gave an undertaking that it would not seek from the FMIF any costs of or incidental to the investor meeting convened by notice dated 26 April 2013.
A copy of the order is available below:
As advised in our reports to investors, FTI appealed the above decision. This matter was heard by the Court of Appeal on 28 November 2013 with the decision to dismiss the appeal being handed down on 6 June 2014. A copy of the judgement in this respect is available below:
Judgment of Justice Fraser & Justice Gotterson & Justice Daubney delivered on 6 June 2014 (7.1 MB)
Recent Updates
- FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 17 December 2019
- LMFMIF Estimated Unit Price as at 30 June 2019 (0.1 MB)
- 27th update report to investors dated 30 September 2019 (0.2 MB)
- FMIF Financial Statements for the year ending 30 June 2019 (1.3 MB)
- Order of the Supreme Court of Queensland dated 2 July 2019 (1.6 MB)
- 26th report to investors dated 01 July 2019 (0.2 MB)
- FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 2 July 2019
- Affidavit of David Whyte sworn 1 May 2019 (8.1 MB)
- Affidavits of David Whyte sworn 18 April 2019 (volumes 1 to 3)
- LMFMIF Estimated Unit Price as at 31 December 2018 (0.2 MB)