It's not like they are new at this and forgot. I don't accept that at all. nor should you.
I think you should be able to work out if they used VA in a lawful manner or not.
Tell me, did you or anyone buy shares hoping for a beer to be produced or did you buy it because of 3d printing.
Was it a good idea for the other 3 directors to try and force the founder, designer and inventor of the 3d printing technology that the company was based on? The only engineer with any experience?
Do you think that they had the company and it's shareholders best interests in mind or do you think they made a mistake getting greedy?
3dg/3di did not pay ANY rent in the factory they operated in for the entire time they were there. Do you or any shareholder think that this is ok?
Ask your self as a shareholder, how would you feel if someone wanted to buy your shares but you didn't want to sell them but then they took them using VA.
I think you would be asking yourself, can someone force me to sell shares? Can they just take my shares if I don't sell? Legally?
One of the things they have avoided telling you all is, if they thought the administration was lawful.
An administration that cost shareholders $145,594.56.
An administration that has also prevented the company doing the reverse takeover that the shareholders bought shares because of.
Regardless of what they say, based on the valid uses of VA, the move to try and force Jason out for his shares and IP falls outside the genuine bona fide uses of VA.
As fiduciaries, insolvency practitioners must be, and must be seen to be, independent and impartial. It is critical that creditors, and the wider public, have absolute confidence in liquidators acting, and being seen to act, independently and in the creditors’ interests.’
The law sets a high standard for insolvency practitioners to act in the interest of creditors.
'Creditors must have absolute confidence in a liquidator's independence knowing that they are free of any conflict, both actual and perceived.
ASIC Commissioner John Price said, ‘This action reaffirms our message that ASIC will not hesitate to take disciplinary action against practitioners who fail to act in the best interests of creditors or whose conduct falls short of required professional standards.’
Liquidators are very important gatekeepers in identifying, acting on and reporting pre-appointment transactions which might seek to defeat the creditors' interests. Creditors must have confidence in the fundamental duty of liquidators to act solely in the creditors’ interests.
ASIC and the courts will not tolerate conduct that does not live up to community expectations
The actions of the administrator should be recognised as a systemic failure of administration and internal protocols as well as (in a number of instances) extremely poor professional judgment. In this way Mr Callbretta has failed to satisfy the high standards of conduct required of his office.
Clearly the legislative scheme is premised on the notion that the prescribed procedure will be used only by those companies genuinely experiencing difficulties in meeting payments. The necessary precondition for a valid appointment is that the opinion of the majority of directors is that the the company is either insolvent or likely to become insolvent. As the Corporations Act is now a Commonwealth statute, this provision must be read in a “purposive” fashion. Accordingly, it would be inappropriate to permit the valid appointment of an administrator by resolution in circumstances where there is little evidence of either insolvency or its substantial or reasonable likelihood. Accordingly, while a company need not be insolvent in order for the board to appoint an administrator, what is required is that the board turn its mind to the question and form a bona fide and genuine opinion as to the solvency (or likely solvency) of the company.
This was sent to the 3 directors by Jason's lawyer- on the 24th of december 2014 The resolutions sent to my client today are clearly in breach of s181, s.182 of the Corporations Act, and your clients are acting oppressively contrary to s.232 of the Act.The resolution to put the company into VA is an abuse of the Act, and will attract the Court’s jurisdiction under s.447A of the Act. The oppressive conduct is clear from the face of the resolutions, namely, the conditions which show that the company will not go into VA if my client accepts the offer made to sell his shares below value. We note we take the resolutions to amount to a waiver by your client of all privilege in past communications. It is clear that the company is not insolvent. No creditor is calling for repayment of any debt. OzBrewing’s debt will not be repayable if its simple request in its letter of 28 November 2014 is met. Your clients have an obligation to fund the company in any event. Your clients would be wise to rescind the resolutions forthwith, and extend the Heads of Agreement with OzBrewing as requested by it on 28 November 2014. To the extent Jason’s authority is required for your clients to do so, he hereby authorises you to do so. If your clients do not take the actions specified in the previous paragraph, and the company is put into VA, my client will take legal action against your clients. I state your clients quite advisedly. Your position is hopelessly conflicted. Other than passing on this email, we require your firm to cease acting for any party in relation to this dispute immediately, failing which our client will make a misconduct complaint against your firm. I do hope that ASIC see the actions of the 24th of december being unlawful and for improper purpose.
My lawyer is now wanting me to proceed, I just have to find some way of funding it and then I will.
Regards Jason Simpson
I hope this makes things a little clearer.
T3D Price at posting:
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