Notice to Investors of Orders to Finalise FMIF
I will be paying a final distribution to investors on or around 31 July 2024 as authorised by Order of the Honourable Justice Kelly dated 27 May 2024. Investors have until 21 June 2024 to submit requests for any updates to be made to their bank/contact details or transfer of units in the investor database. Investors should refer to the notice below for further information.
- Notice to Investors of Orders to Finalise FMIF (0.6 MB)
- Sealed Order of Justice Kelly dated 27 May 2024 – BS3383 of 2013 (0.4 MB)
- Sealed Order of Justice Kelly dated 27 May 2024 – BS3508 of 2015 (0.2 MB)
Court Applications by FMIF Receiver and LMIM Liquidator – Hearing Date 27 May 2024
On 12 April 2024, David Whyte, 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 to finalise the winding up of the FMIF (the finalisation application), including an order approving his remuneration for the period from 1 May 2022 to the conclusion of the winding up to be paid from the property of the FMIF.
On 17 April 2024, Mr John Richard Park, the liquidator of LM Investment Management Limited (in liquidation) (receivers and managers appointed) ACN 077 208 461 (“LMIM”), has applied to the Supreme Court of Queensland for determination of his remuneration and approval of his expenses to be paid from the property of the FMIF (the liquidator remuneration application).
The finalisation application and the liquidator remuneration application will both be heard by the Supreme Court in Brisbane on 27 May 2024 at 10.00 am. Further details regarding your rights to appear at and participate in the hearing are set out at in the Notice below.
The application and supporting material can also be found below.
- Notice to Members of the Receiver’s finalisation application and the liquidator’s remuneration application to the Court (0.2 MB)
- Receiver’s finalisation application filed on 12 April 2024 (0.9 MB)
- Affidavit of David Whyte sworn on 9 April 2024 and filed on 12 April 2024 (2.3 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte (12.8 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte (10.9 MB)
- Exhibit Volume 3 to the Affidavit of David Whyte (130.0 MB)
- Exhibit Volume 4 to the Affidavit of David Whyte (120.5 MB)
- Exhibit Volume 5 to the Affidavit of David Whyte (112.0 MB)
- Liquidator’s remuneration application filed on 17 April 2024 (2.0 MB)
- Affidavit of John Park sworn and filed on 18 April 2024 (143.4 MB)
- Affidavit of Kelly-Anne Trenfield sworn and filed on 18 April 2024 (28.0 MB)
- Affidavit of Millicent Russell sworn and filed on 18 April 2024 (3.5 MB)
- Notice to members inviting claims dated 26 April 2024 (0.1 MB)
- Remuneration Affidavit of David Whyte sworn on 9 April 2024 and filed on 29 April 2024 (22.3 MB)
- Exhibit Volume 1 to the Remuneration Affidavit of David Whyte (299.3 MB)
- Exhibit Volume 2 to the Remuneration Affidavit of David Whyte (102.6 MB)
- Supplementary Affidavit of David Whyte sworn on 28 April 2024 and filed on 29 April 2024 (2.1 MB)
- Sealed Order of Justice Kelly dated 18 April 2024 – 3383 of 2013 (0.5 MB)
- Sealed Order of Justice Kelly dated 18 April 2024 – BS3508 of 2015 (0.1 MB)
- Sealed Order of Justice Kelly dated 3 May 2024 – BS3508 of 2015 (0.1 MB)
- Second Supplementary Affidavit of David Whyte sworn on 21 May 2024 and filed on 22 May 2024 (1.8 MB)
- Submissions of David Whyte for finalisation application filed on 22 May 2024 (0.7 MB)
- Amended Liquidator’s application to the Court filed on 20 May 2024 (1.8 MB)
- Affidavit of Kelly-Anne Trenfield sworn and filed on 20 May 2024 (1.7 MB)
- Liquidator’s outline of submissions filed on 20 May 2024 (6.7 MB)
- Sealed Order of Justice Kelly dated 27 May 2024 – BS3383 of 2013 (0.4 MB)
- Sealed Order of Justice Kelly dated 27 May 2024 – BS3508 of 2015 (0.2 MB)
Important Notice to Members
ASIC Financial Reporting Relief – 1 March 2024
On 1 March 2024, the Australian Securities and Investments Commission, on my application, issued instrument 24-0114 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.
A notice explaining the instrument of relief and a copy of the instrument can be found below.
- Notice Explaining Instrument of Relief (0.2 MB)
- ASIC Instrument (0.2 MB)
Important Notice to Members
ASIC Financial Reporting Relief
On 14 September 2022, the Australian Securities and Investments Commission, on my application, issued instrument 22-0765 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.
A notice explaining the instrument of relief and a copy of the instrument can be found below.
- Notice Explaining Instrument of Relief (0.2 MB)
- ASIC Instrument (0.1 MB)
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 18 October 2022
On 5 September 2022, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 November 2021 to 30 April 2022. 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 5 September 2022 (1.3 MB)
- Affidavit of David Whyte sworn on 3 August 2022 and filed on 5 September 2022 (0.7 MB)
- Affidavit of David Whyte sworn on 29 June 2022 – Volume 1 (3.2 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte (21.0 MB)
- Exhibit Volume 3 to the Affidavit of David Whyte (4.0 MB)
- Sealed Order of Justice Callaghan dated 15 October 2020 (0.9 MB)
Important Notice to Members
ASIC Financial Reporting Relief
On 11 March 2022, the Australian Securities and Investments Commission, on my application, issued instrument 22-0124 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 15 March 2024. A notice explaining the instrument of relief and a copy of the instrument can be found below.
- Notice Explaining Instrument of Relief (0.1 MB)
- ASIC Instrument (0.1 MB)
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’ expenses. A copy of the application and notice issued to members of the FMIF is below:
- Application filed on 7 March 2022 (2.1 MB)
- Notice to Members dated 9 March 2022 (0.1 MB)
- Affidavit of John Richard Park filed on 7 March 2022 (5.1 MB)
- Affidavit of Stephen Charles Russell filed on 7 March 2022 (3.1 MB)
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 15 February 2022 (1.8 MB)
- Notice to Members dated 16 February 2022 (0.1 MB)
- Affidavit of Kelly Anne Lavinia Trenfield filed on 15 February 2022 (66.8 MB)
- Submissions of the Liquidator filed on 12 April 2022 (5.3 MB)
Further information can be found at https://www.lminvestmentadministration.com/.
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 16 December 2021
On 2 December 2021, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 May 2021 to 31 October 2021. 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 (0.2 MB)
- Application for approval of remuneration filed on 2 December 2021 (0.2 MB)
- Affidavit of David Whyte sworn on 8 November 2021 and filed on 2 December 2021 (3.2 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte (26.0 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte (3.5 MB)
- Affidavit of Gerry Collins sworn on 12 November 2021 and filed on 2 December 2021 (2.3 MB)
- Sealed Order of Justice Callaghan dated 15 October 2020 (1.0 MB)
- Sealed Outline of Submissions on Behalf of the Court Appointed Receiver dated 10 December 2021 (2.1 MB)
The hearing for the remuneration application of the Court Appointed Receiver took place on 16 December 2021. The court approved the remuneration sought of $924,169.40 (inclusive of GST) in respect of work undertaken in dealing with FMIF during the period from 1 May 2021 to 31 October 2021. A copy of the order made on 16 December 2021 is available below:
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 13 August 2021
On 14 July 2021, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 November 2020 to 30 April 2021. 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 (0.2 MB)
- Application for approval of remuneration filed on 14 July 2021 (1.5 MB)
- Affidavit of David Whyte sworn on 31 May 2021 and filed on 14 July 2021 (2.8 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte (173.7 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte (158.6 MB)
- Exhibit Volume 3 to the Affidavit of David Whyte (104.9 MB)
- Affidavit of Gerry Collins sworn on 13 June 2021 and filed on 14 July 2021 (45.2 MB)
- Sealed Order of Justice Callaghan dated 15 October 2020 (0.9 MB)
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 12 February 2021 (2.5 MB)
- Notice to Members dated 24 March 2021 (0.3 MB)
- Affidavit of Kelly Anne Lavinia Trenfield filed on 12 February 2021 (Part 1) (15.8 MB)
- Affidavit of Kelly Anne Lavinia Trenfield filed on 12 February 2021 (Part 2) (12.8 MB)
- Affidavit of Renee Lobb filed on 12 February 2021 (1.4 MB)
- Orders of Justice Callaghan delivered 23 March 2021 (4.5 MB)
- Orders of Justice Callaghan delivered 14 May 2021 (0.8 MB)
Further information can be found at https://www.lminvestmentadministration.com/.
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 26 March 2021
On 2 March 2021, the Court Appointed Receiver made an application for the approval of his remuneration for the period 1 May 2020 to 31 October 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.
- Notice to Members of the Receiver’s Court application for remuneration approval (0.2 MB)
- Application for approval of remuneration filed on 2 March 2021 (1.6 MB)
- Affidavit of David Whyte sworn on 22 January 2021 and filed on 2 March 2021 (35.8 MB)
- Exhibit Volume 1 to the Affidavit of David Whyte (149.4 MB)
- Exhibit Volume 2 to the Affidavit of David Whyte (145.0 MB)
- Exhibit Volume 3 to the Affidavit of David Whyte (103.9 MB)
- Affidavit of Gerry Collins sworn on 1 February 2021 and filed on 2 March 2021 (43.4 MB)
- Sealed Order of Justice Callaghan dated 15 October 2020 (0.1 MB)
- Counsel’s submissions on behalf of the Court Appointed Receiver dated 22 March 2021 (2.2 MB)
The hearing for the remuneration application of the Court Appointed Receiver took place on 26 March 2021. The court approved the remuneration sought of $1,104,433.00 (inclusive of GST) in respect of work undertaken in dealing with FMIF during the period from 1 May 2020 to 31 October 2020. A copy of the order made on 26 March 2021 is available below:
FMIF Receiver’s Court Application for Remuneration Approval – Hearing Date 2 July 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.
- Notice to Members of the Receiver’s Court application for remuneration approval (0.1 MB)
- Application for approval of remuneration filed on 11 May 2020 (0.4 MB)
- Affidavit of David Whyte sworn on 7 May 2020 and filed on 11 May 2020 (10.6 MB)
- Court Application Protocol (0.3 MB)
- Sealed Order of Justice Callaghan dated 27 May 2020 (0.1 MB)
- Further Notice to Members of the Receiver’s Court application for remuneration approval dated 12 June 2020 (0.1 MB)
- Affidavit of David Whyte sworn on 11 June 2020 (22.5 MB)
- Affidavit of Gerry Collins sworn on 18 June 2020 (4.7 MB)
- Affidavit of Ryan John Whyte sworn on 26 May 2020 (1.7 MB)
- Affidavit of Leah Rhiannon Black sworn on 26 May 2020 (3.2 MB)
- Application filed 26 June 2020 (1.9 MB)
- Affidavit of Stephen Charles Russell sworn on 24 June 2020 (1.1 MB)
- Affidavit of Millicent Kathryn Russell sworn on 24 June 2020 (3.7 MB)
- Receiver's Submissions filed 29 June 2020 (2.1 MB)
- Affidavit of David Whyte sworn on 30 June 2020 (6.0 MB)
- Affidavit of Ryan John Whyte sworn on 30 June 2020 (2.4 MB)
- Affidavit of Andrea Whisson sworn on 29 June 2020 (3.8 MB)
The hearing for the remuneration application of the Court Appointed Receiver took place on 2 July 2020. The court approved the remuneration sought of $989,373.55 (inclusive of GST) in respect of work undertaken in dealing with FMIF during the period from 1 November 2019 to 30 April 2020. A copy of the order made on 15 October 2020 is available 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:
- 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 2022. A notice explaining the instrument of relief and a copy of the instrument can be found below.
- Notice Explaining Instrument of Relief (0.1 MB)
- ASIC Instrument (0.1 MB)
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.
- Notice to Members of the Receiver’s Court application (1.5 MB)
- Sealed originating application filed 31 January 2020 (0.3 MB)
- Sealed Affidavit of David Whyte dated 31 January 2020 (3.2 MB)
- Sealed Affidavit of David Whyte dated 3 February 2020 (0.5 MB)
- Sealed Notice of Appeal dated 20 December 2019 (0.5 MB)
- Sealed Order of Justice Callaghan dated 14 February 2020 (0.2 MB)
- Sealed Affidavit of Scott Couper dated 31 January 2020 (Volume 1 of 5) (8.4 MB)
- Sealed Affidavit of Scott Couper dated 31 January 2020 (Volume 2 of 5 – Part 1 of 2) (6.8 MB)
- Sealed Affidavit of Scott Couper dated 31 January 2020 (Volume 2 of 5 – Part 2 of 2) (6.4 MB)
- Sealed Affidavit of Scott Couper dated 31 January 2020 (Volume 3 of 5) (5.2 MB)
- Sealed Affidavit of Scott Couper dated 31 January 2020 (Volume 4 of 5) (8.2 MB)
- Sealed Affidavit of Scott Couper dated 31 January 2020 (Volume 5 of 5) (5.6 MB)
- Sealed order of Justice Callaghan dated 21 February 2020 (0.1 MB)
- Sealed List of Authorities as filed on 28 February 2020 pursuant to the order dated 14 February 2020 (0.1 MB)
- Sealed Affidavit of Ryan John Whyte dated 16 April 2020 (1.9 MB)
- Sealed Affidavit of Claudia Jane Dennison dated 17 April 2020 (4.4 MB)
- Sealed Applicants' statement of Facts dated 17 April 2020 (1.1 MB)
- Sealed Affidavit of John Richard Park dated 17 April 2020 (1.8 MB)
- Sealed Affidavit of Scott Couper dated 8 May 2020 (7.1 MB)
- Affidavit of Millicent Kathryn Russell dated 21 May 2020 (9.1 MB)
- Submissions of the Liquidator dated 22 May 2020 (2.2 MB)
- Submissions of the Applicant dated 25 May 2020 (3.4 MB)
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:
- 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 Final Financial Statements for the period 1 July 2024 to 17 October 2024
- 48th and Final Report to investors dated 23 October 2024 (0.1 MB)
- FMIF Financial Statements for the year ending 30 June 2024
- LMFMIF Estimated Unit Price as at 30 June 2024
- 47th report to investors dated 30 September 2024 (0.2 MB)
- 46th report to investors dated 28 June 2024 (0.1 MB)
- Notice to Investors of Orders to Finalise FMIF
- Court Applications by FMIF Receiver and LMIM Liquidator – Hearing Date 27 May 2024
- FMIF Financial Statements for the half-year ending 31 December 2023 (0.6 MB)
- LMFMIF Estimated Unit Price as at 31 December 2023 (0.3 MB)