FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 27 May 2020

On 11 May 2020, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 November 2019 to 30 April 2020. 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. The current Protocol for parties or practitioners appearing at a hearing in the Supreme Court of Queensland in light of COVID19 restrictions can be found in the Court Application Protocol document below.

Important Notice to Members

ASIC Financial Reporting Relief

On 3 March 2020, the Australian Securities and Investments Commission, on my application, issued instrument 20-0166 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:

  1. the disclosing entity provisions in Part 2M.3 of the Act in relation to a financial year or half year of the FMIF;
  2. section 601HG of the Act in relation to a financial year of the FMIF.

The exemption applies during the period ending on 16 March 2022. A notice explaining the instrument of relief and a copy of the instrument can be found below.

Application filed by the FMIF Receiver on 31 January 2020 for directions as to whether he is justified in making and pursuing the Notice of Appeal in Supreme Court of Queensland proceedings 1146/20 – Hearing Date 2 June 2020

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 as to:-

"whether Mr Whyte is and was justified in making and pursuing the Notice of Appeal number 14258 of 2019 dated 20 December 2019 in respect of the Judgment of the Supreme Court of Queensland in LM Investment Management Ltd (receiver appt) (in liq) v Drake & Ors [2019] QSC 281 (the Director Proceedings Judgment) on behalf of the Applicant in this proceeding"

The Notice to the Members of the LM First Mortgage Income Fund (Receiver Appointed) in relation to the application together with a copy of the application and supporting material can be found below.

Further documents filed in the proceedings will be uploaded to this website as and when they become 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:

  1. Trilogy Funds Management Ltd pay 7% of LM Investment Management Ltd (in Liquidation) (Receivers and Managers Appointed) (“LMIM”) costs of the proceeding; and
  2. 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)

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