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:-

  1. 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”);
  2. 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:

  • Orders of Mullins J delivered 22 February 2019 (0.3 MB)



    • 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.

  • Notice to FMIF members dated 7 March 2019 (0.7 MB)
  • Interlocutory Application dated 1 February 2019 (0.4 MB)
  • Affidavit of David Whyte sworn 31 January 2019 (1.5 MB)
  • Exhibit Volume 1 to the Affidavit of David Whyte (13.8 MB)
  • Exhibit Volume 2 to the Affidavit of David Whyte (10.8 MB)
  • Exhibit Volume 3 to the Affidavit of David Whyte (11.4 MB)
  • Exhibit Volume 4 to the Affidavit of David Whyte (11.4 MB)
  • Affidavit of David Whyte sworn 18 April 2019 (volume 1 of 3) (13.6 MB)
  • Affidavit of David Whyte sworn 18 April 2019 (volume 2 of 3) (12.1 MB)
  • Affidavit of David Whyte sworn 18 April 2019 (volume 3 of 3) (8.7 MB)
  • Affidavit of David Whyte sworn 1 May 2019 (8.1 MB)
  • Affidavit of David Whyte sworn 2 May 2019 (1.3 MB)
  • Affidavit of Ryan John Whyte sworn 2 May 2019 (1.5 MB)
  • Affidavit of Craig Russell Melrose sworn 2 May 2019 (5.0 MB)
  • Written submissions of David Whyte dated 2 May 2019 (0.3 MB)

    • 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:-

    1. for authority to make an interim distribution from the property of the FMIF of up to $40 million among the members of the FMIF;
    2. 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:

    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:

    1. 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;
    2. 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);
    3. 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;
    4. 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:

    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:

    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:

    1. 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;
    2. 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, certain orders were made including that, pursuant to section 59 of the Trusts Act 1973 (Qld), the interests of LMIM in its capacity as responsible entity of the CPAIF as first defendant and of LMIM in its capacity as responsible entity of the ICPAIF as third defendant be represented in these proceedings by Mr Said Jahani of Grant Thornton in his capacity as receiver and manager of the property of the CPAIF and of the ICPAIF.

    In addition, orders were made for the parties to the proceedings to engage in a mediation on a date to be agreed to be completed by 28 September 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 proceeding are below:

    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:

    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.

    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 documentation will be uploaded to this website as it becomes available.

    Public Examination

    On 17 November 2014, the Court appointed Receiver, David Whyte (David Whyte) filed an application in the Supreme Court of Queensland to conduct a PE in relation to the audits undertaken of the FMIF. The application was granted on 27 November 2014 and the summonses were issued on 30 January 2015.

    On 6 March 2015, the auditors filed an application in Court to discharge the summonses against them and to defer the production of the documents to a date following the hearing. The auditors argued that David Whyte did not have the power to conduct the PE.

    David Whyte opposed the auditors application on the grounds that he has the power to conduct a PE and on the basis ASIC has granted him Eligible Applicant status to do so. The first day of the PE was on 16 March 2015 when the examinees (certain directors and former staff of LMIM and the auditors) produced a small quantity of documents. Consent orders were also made that day allowing the auditors more time to produce the remaining documents in three tranches on 2, 16 and 30 April 2015.

    On 15 May 2015, the Supreme Court of Brisbane dismissed the auditors application to set aside the PE summonses. A copy of the court order can be found below.

    As a consequence of the delay in the auditors producing all of the documents pursuant to their summonses, the examinees were examined under oath between 15 and 25 June 2015. Certain documents were not produced by the auditors before the commencement of the June examinations. These documents were mainly emails between the auditors and certain directors and staff of LMIM. The auditors have now produced 4 tranches of these emails.

    On 14 September 2015, David Whyte filed a further application in the Supreme Court of Queensland to examine a further three parties as a result of additional investigations and knowledge gained from the PE.

    David Whyte obtained further Court dates from 19 to 30 October 2015 to continue the public examinations of the examinees and the additional examinees, which will largely be focused on the compliance plan audits and finalising matters arising from the June examinations.

    FMIF Receiver’s Court Application for the replacement of Controllers – 15 September 2014

    An application has been made to the Supreme Court of Queensland in relation to approval of the proposed appointment of Mr Whyte and Mr Fielding of BDO as PTAL’s agents in dealing with the retirement village assets. The proposed appointment will limit duplication of costs and replace LM Investment Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation) as controllers of these assets. A copy of the application and supporting affidavit can be found below:

    At the hearing on 15 September 2014, the court directed that the Court Appointed Receiver was justified in arranging the appointment of David Whyte and Andrew Fielding of BDO as Controllers of five retirement villages to replace LM Investment Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation). A copy of the order made on 15 September 2014 can be found below: