Trilogy Funds Management Limited as Responsible Entity for the Pacific First Mortgage Fund v Sullivan & ors
On 27 April 2012, Maurice Blackburn filed an application and a
statement of claim in the Federal Court in Sydney against
Philip Sullivan, Stephen McCormick, Ian Donaldson and Thomas Swan,
the directors and officers of the former ASX listed City Pacific
Ltd (Receivers & Managers Appointed) (In Liquidation).
The claim was brought by Trilogy Funds Management Limited as
responsible entity for the Pacific First Mortgage Fund (formerly
known as the City Pacific First Mortgage Fund) following
significant losses on Fund loans to property developer, Atkinson
Gore Agricultural Pty Ltd (Receivers & Managers Appointed) (In
Liquidation) between 2006 and 2007.
Trilogy's case alleges that lending decisions made by the
defendants, as members of the credit committee of City Pacific,
were unreasonable and failed to follow the Fund's lending criteria
and constitution. The claim alleges that the poor lending
decisions resulted in an increase in a loan facility to Atkinson
Gore Agricultural over its 'Seven Mountains' development in
Canungra, Queensland. Trilogy claims the defendants should
pay the Fund compensation for losses sustained by the Fund as a
result of these poor lending decisions.
The claim alleges the defendants breached their duties under the
Corporations Act 2001 when granting certain loan
facility increases to Atkinson Gore Agricultural Pty Ltd.
These increases were said to be for the purposes of
developing a large rural site known as 'Seven Mountains' known by
City Pacific as 'Saddleback'. It is alleged that members of
the credit committee unreasonably relied on a March 2006 valuation
by PRP Valuers and Consultants Gold Coast Pty Ltd. These
valuations provided two alternative values for the Saddleback land
- $64.1 million, if the land was rezoned from 'rural' use;
- $102.4 million, if the land was also included in the 'Urban
Footprint' area under the South East Queensland Regional Plan or
declared under the State Development and Public Works
Organisation Act 1971 a 'State Significance' project.
The claim alleges that, at the time of the loan increases, the
Saddleback land had not been rezoned from its 'rural' use, nor was
it ever declared a 'State Significant' project or included in the
'Urban Footprint'. Trilogy alleges that it was unreasonable
and in breach of the credit committee's obligations and duties
under the Corporations Act to rely on such vastly inflated
valuations based on unsatisfied assumptions.
By 1 July 2007, the Fund had advanced over $60 million to
Atkinson Gore Agricultural in connection with the Saddleback lands,
which in February 2012, were valued at less than $9.5 million.
Status of the claim
Trilogy lodged its claim against the defendants in the Federal
Court of Australia on 27 April 2012. The defendants instructed
their original solicitor on 15 May 2012 and then changed
solicitors on 27 July 2012 before lodging their original defence on 3
August 2012. The defendants denied responsibility for any
losses to the Fund arising from their approval of loans made for
the development of the King Tide Apartments and increases in the
loan facility granted on the Saddleback lands. On 16 October 2012
the defendants filed an amended defence
relying on the provisions of a deed of cross collateralisation as
additional justification for the Saddleback loan increases.
Trilogy filed its reply to the amended
defence on 1 November 2012.
On 27 September the defendants also lodged a cross claim
alleging entitlements to certain indemnities for legal costs
(incurred in relation to the proceeding) arising from a deed of
indemnity said to have been granted by City Pacific Ltd.
Trilogy has denied it is bound by that deed and filed its defence to that
cross claim on 17 October 2012. Trilogy also provided further
particulars to that defence on 12 February 2013.
On 8 March 2013, following a detailed review of the defendants'
evidence, Trilogy filed an
amended statement of claim, containing further particulars of
the Saddleback transaction and the defendants' knowledge of those
matters. The defendants are to provide a defence to the
amended statement of claim by 5 April 2013.
Trilogy served evidence in support of its claim on 4 October
2012. The defendants (with the exception of Mr McCormick)
served evidence in support of their defence on 2 November 2012 and
additional evidence on 20 February 2013. The defendants
obtained an extension of time to file and serve expert evidence by
31 January 2013 but in February 2013 advised that they would not be
filing any such expert material.
In early November 2012 Mr McCormick instructed a third (new)
firm of solicitors to represent him and subsequently obtained a
further extension of time to allow him to file his evidence by 31
January 2013. Mr McCormick lodged a further
amended defence on 3 December 2012. In February 2013 Mr
McCormick's lawyers confirmed that Mr McCormick would not be filing
any evidence in response to Trilogy's claim.
Messrs Sullivan, Swan and Donaldson have until 19 April 2013 to
serve any supplementary evidence. Trilogy is to serve its
supplementary evidence and documents for tender at trial by 13 May
Proposed early hearing of Mr McCormick's cross claim
In September 2012 Mr McCormick filed an application to have his
cross claim determined in full prior to the hearing of Trilogy's
claim. Mr McCormick argued that he should be indemnified by
Trilogy for his legal costs of defending Trilogy's claim against
him, at least up until the time of judgment of Trilogy's claim.
Mr McCormick's application was listed before the court on
several occasions in late 2012 and again in February 2013. On
26 February 2013 Justice Emmett dismissed Mr McCormick's
application and ordered that he pay Trilogy's legal costs of that
Mr McCormick's solicitors have now advised that Mr McCormick
intends to proceed unrepresented in this matter. On 12 March
2013 Mr McCormick's solicitors ceased to
The matter is next listed for directions in the week of 20
May 2013 to obtain further pre-trial directions and
allocate a trial date.
The trial is expected to commence inthe second half of 2013.
Since replacing City Pacific Ltd as the responsible entity of
the Pacific First Mortgage Fund in July 2009, Trilogy has been
investigating City Pacific's management of the Pacific First
Mortgage Fund. Trilogy is continuing its investigations to
determine the best avenues available to recover funds on behalf of
unit holders in the Pacific First Mortgage Fund.
Unit holders in the Pacific First Mortgage Fund should direct
any enquiries they have regarding these matters to Balmain NB
Corporation Limited as sub under asset manager of the Fund on
telephone number 1800 194 500 or email email@example.com.