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Insolvency practitioner Ginette Muller of FTI Consulting has had plenty of time over the weekend to think about the well-deserved judicial kicking she's received from Queensland Supreme Court judge Jean Dalton over her role in administering the LM funds management empire formerly run by Peter Drake.
Justice Dalton's judgment on Thursday reflected long-standing concerns about the way Muller and fellow FTI partner John Park have taken care of business since Drake and his fellow directors appointed the pair administrators of a key company in the LM group, LM Investment Management.
Her Honour said Muller and Park had "demonstrated a preparedness to act in a way inconsistent with those owing duties as responsible entity and trustee under the Corporations Act" and sworn to matters which were "not consonant with reality".
And there was an extra dollop for Muller, who Her Honour said made "unprofessionally robust and partisan" statements and swore an affidavit that was "sniping and argumentative".
The judge took control of LM's First Mortgage Income Fund away from Park and Muller, instead appointing David Whyte of BDO as receiver of the fund.
Making things worse, on Friday corporate watchdog the Australian Securities and Investments Commission put out a press release pointedly extracting some of the ruling's juiciest criticisms.
Muller should resign from LM Investment Management and consider taking a permanent vacation from the insolvency trade.
It doesn't seem likely. Park said an appeal was being considered and pointed to Muller's "unblemished professional record", saying FTI had "complete confidence in the professionalism and integrity of our directors".
Suit cut to shreds
"Always bet on black," Wesley Snipes said in the 1992 cult classic Passenger 57. But, even before he went to jail for tax evasion, backing Snipes seems not to have been such a sure thing.
A group of mystery investors who backed Snipes' vehicle Game of Death (2010) and two other films, mediaeval-themed Ironclad (2011) and Robert Rodriguez's gorefest Machete (2010), have lost a legal bid to recover more than $US25 million ($27 million) loaned to producers.
Representing the investors was film financier Alastair Burlingham, while on the other side was financial services outfit Marlborough, led by Nick Hannah.
The stoush came to a head a little over a month ago in the Royal Court of Channel Islands tax haven Guernsey.
Investors claimed Hannah and three other Marlborough directors, David Enevoldsen, Adrian Howe and Ben Tustin, breached duties as directors of the company used to fund the films, Perpetual Media Capital, by causing the company to fund the films through loans which have never been fully repaid. Not so, the defendants said, pointing to a clause in Perpetual's constitution that indemnified the directors from any liability.
Deputy Bailiff Richard James McMahon found the defence as complete as Danny Trejo's slaughter of the bad guys in Machete.
"As a result, the effect of this determination is that the plaintiff's action is dismissed in its entirety," he said.
Miners beaming
Reports are still dribbling out from last week's Diggers & Dealers mining knees-up in Kalgoorlie, where the partying was still hard even if the gold price has gone soft.
While the price of yellow stuff is down 30 per cent in the past 10 months, some saw grounds for optimism in the shape of a potential change of government.
As local accountant, publican, mining investor and "King of Kalgoorlie" Ashok Parekh proclaimed at one dinner: "The glass is half full now, and it will be even more full after September 7!"
Even Andrew "Twiggy" Forrest's private jet blocking the path of the commercial variety wasn't enough to get executives annoyed.
Funds manager David Paradice reportedly had to bunk in at the backpackers for one night after flying in with his team.
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Frequently Asked Questions about this Article…
The Queensland Supreme Court criticised insolvency practitioner Ginette Muller and FTI partner John Park for how they administered companies in the LM group. Judge Jean Dalton found they acted in ways “inconsistent with those owing duties as responsible entity and trustee” under the Corporations Act, and said some sworn statements were “not consonant with reality.” The judge described Muller’s affidavit as “sniping and argumentative.”
The judge removed Park and Muller from control of LM’s First Mortgage Income Fund and appointed David Whyte of BDO as receiver. A receiver takes control of the fund’s assets to manage and recover value for creditors and investors, replacing the prior administrators while the court process and asset recovery continue.
The Australian Securities and Investments Commission (ASIC) issued a press release highlighting some of the court ruling’s strongest criticisms of the administrators. The regulator’s statement reiterated the court’s findings and drew public attention to the judgment.
Yes — the article reports the judge said Muller should resign from LM Investment Management and even suggested she consider leaving the insolvency profession. Despite that, FTI and John Park said an appeal was being considered and defended Muller’s previously described “unblemished professional record.”
Investors should monitor court updates, the receiver’s actions (David Whyte of BDO), any notice from fund managers or responsible entities, and ASIC communications. The appointment of a receiver signals active steps to manage and recover fund assets, and investors may face a period of uncertainty until the receiver reports and any appeals are resolved.
A group of investors who lent more than US$25 million to film projects (including Game of Death, Ironclad and Machete) lost a legal bid in the Royal Court of Guernsey. The court found that Perpetual Media Capital’s constitution indemnified its directors, and the plaintiff’s action was dismissed in its entirety.
Reports from the Diggers & Dealers conference in Kalgoorlie described lively social activity despite the gold price being about 30% lower over the prior 10 months. Some attendees expressed optimism — partly tied to the prospect of a change of government — and industry figures (including Ashok Parekh and mentions of Andrew “Twiggy” Forrest) were quoted or noted in the coverage.
The article notes the gold price was down roughly 30% in the past 10 months, which can mean greater volatility for mining stocks and investor sentiment. While some conference attendees were optimistic about political changes improving conditions, everyday investors should be aware that lower commodity prices can pressure mining company revenues and share prices until market or policy conditions change.
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