672 notice was one of many. To refresh our memories:
The Two questions that should be tested:
The first and major question is whether the AMSLA forms part of the contract with Opes. The first position is that it does not. The second position is that if it is in the contract then it got there by false and misleading conduct on the part of opes. This is eminently winnable, based on the evidence we have to date.
The second major question is whether ANZ knew this was the case, or should have known, as bankers and custodians. If the answer to the second question is yes, then the whole arrangement is voided, and gets unwound. So what evidence do we have to get a yes judgement to this question. Current evidence includes ANZ operating this as a normal margin lending arrangement over 4 years, as evidenced by the following:
1. ANZ did not lodge substantial shareholder notices
2. clients lodged substantial shareholder notices
3. clients voted their shares (note opes to client amsla forbids voting by the client clause 3.3)
4. clients participate in SPPs (but precluded in FSG)
5. clients receive dividends (could have been 'manufactured' dividends by ANZ..check this)
6. clients participate in dividend reinvestment (DRP needs to be confirmed by evidence..any out there?)
7. clients make contributions to contributing share calls
8. clients take up and dispose of rights under rights issues
9. clients took up options to shares
10. clients should have received a monetary payment instead (in lieu)
11. money ANZ/Opes "lent" to the Opes clients in exchange for the shares provided, was calculated in a manner consistent with conventional margin lending (LVRs etc..), and it was NOT calculated in a manner consistent with conventional stock lending.
12. ANZ directly affirmed BENEFICIAL OWNERSHIP TO CLIENT/s in writing...2 copies of section 672 notices that request (at law)disclosure of owners...ANZ responded Opes (in writing)...Opes responded clients(in writing) and provided excel spreadsheet showing all clients in th
13. Correspondence from an OP client: ANZ says beneficial holder Opes...Opes says client beneficial holder
14. AMSLA loan term can only last for up to 11 months 20 days, but margin loans can be for longer...which they did..the AMSLA opes to client didn't have a 11 month 20 day loan term.
15. Lincoln Indicators Fund(LIF)...7 person meeting including ANZ...ANZ represents/affirms Beneficial Interest is retained by the client and if Opes becomes insolvent then shares can be recalled by client.
16. Clients had full entitlements to in specie distribution of shares eg Giralia Resources had at least half a dozen in specie distributions of new listed companies in the last 2 years.
17. Company reconstructions (demergers and takeovers) such as Toll/Asciano and Toll/Patrick where clients had to choose between cash and/or shares.
18. Returns of Capital to client accounts (such as AMP) and client acceptance of Share Buy-Backs (such as BHP)
19. Clients who were Directors of companies in which they had shares declared their beneficial ownership of those shares
20. Changes in client substantial share holdings and client Director shareholdings, notices lodged with ASX by the clients
No Contract exists:
There were 2 AMSLAs..clients/opes..opes/ANZ..3 parties. All parties abandoned both AMSLAs through their abandonment actions (20 so far documented over 1200 days).
How can the bank not be complicit..the Bank abandoned its AMSLA with Opes...and Opes with clients..."through their conduct, when objectively viewed" (Fink ruling)...bank innocent bystanders..impossible
Both AMSLAs are therefore voided between the 3 parties...irrelevant documents
If the back to back AMSLAs are voided, what are the contracts between the 3 parties..perhaps no legally binding contract exists
So what existed is :
The Parties by their actions formed a new contract
A Margin loan
Beneficial ownership is w the client ..w a Margin Loan Pay out your debt..get your shares back
Justice Roddy Maghre QC who co authored the Law Textbook on Equity for Australia
Gave us;
'Abandoned by the parties almost instantly Both ANZ and Opes are estopped from relying on the Amsla"
Hyperfication:
Under Corps law broker can’t pool Cant borrow more than lends client Corporations Act 984(b) sec 7 Default place for Opes Clients
Plus Pooling:
It is easily argued that the client should have been made aware of the RISK of Pooling By not doing so ..we argue the FSG is grossly deficient Pursuant to Corporations Act and/or Void due to misleading and deceptive conduct. In either case void.
ANZ now say ..come on that is not on we are innocent financiers We say that argument is complete toss You are not normal mortgagees and can’t rely on the precedents here because you are not providers of moneys pursuant to a mortgage
ANZ relies on an AMSLA We say a back to back AMSLA OPES TO CLIENT Void or Abandoned Therefore CLIENT to OPes To ANZ void
ANZ then attempts to argue Innocence in another form..we say complete Toss ..and ANZ on Notice at all times ..4 years of Abandonment..4years of acting as if it was a Margin Loan (Traditional)..not this pox ridden thing they constructed between themselves
BPO Price at posting:
0.0¢ Sentiment: Buy Disclosure: Not Held
