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In reply to: mrbear on Wednesday 23/04/08 05:25pm

I am just starting to read through the Decison.


Seems to me a pyrrhic victory at best and leaves solamind and others plenty of scope to seek to recover their shares.


It appears to me (up to para 36) that Finkelstein has determined that if you see an add in the paper selling apples for $5 dollars and you buy an apple you have entered into a vailid contract.


Finkelstein has made no judgement on the validity of the contract if you use a counterfeit $5 note or if the apple is rotten or even an apple at all.


Seems to me SLA and others have plenty of scope to seek to regain their shares and ANZ undoubtedly knows this.







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In reply to: Vilmac on Friday 02/05/08 03:58pm

Hi I was hoping that he held in their favour ( to stop any sale of those shares ) but they would be held responsible for any loss that may occour to the ANZ Bank in further litagation . We need this to be fought in the supreme courts where the ANZ will have to show how much they knew about what was going on and WHY they went along with this Chirade Cheers Towie

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In reply to: towie on Friday 02/05/08 08:25pm

From the other side.


They seem to have a much better organised team working against ANZ and Opes.


This where we are to date, in summary:

The Two questions that will 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, including taking up options to shares

9. clients should have received a monetary payment instead (in lieu)

10. 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.

11. 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 that stock.

Plus Hyperfication:

Under Corps law broker canÃÆâ€â„¢ÃƒÆ’ƒâہ¡ÃƒÆ’‚¢ÃƒÆ’¢Ã¢Ã¢Ã¢Ã¢â€š¬Ã…¡Ãƒâ€šÃ‚¬ÃƒÆ’…¡Ãƒâہ¡ÃƒÆ’‚¬ÃƒÆ’¢Ã¢Ã¢Ã¢Ã¢â€š¬Ã…¡Ãƒâ€šÃ‚¬ÃƒÆ’…¾Ãƒâہ¡ÃƒÆ’‚¢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 canÃÆâ€â„¢ÃƒÆ’ƒâہ¡ÃƒÆ’‚¢ÃƒÆ’¢Ã¢Ã¢Ã¢Ã¢â€š¬Ã…¡Ãƒâ€šÃ‚¬ÃƒÆ’…¡Ãƒâہ¡ÃƒÆ’‚¬ÃƒÆ’¢Ã¢Ã¢Ã¢Ã¢â€š¬Ã…¡Ãƒâ€šÃ‚¬ÃƒÆ’…¾Ãƒâہ¡ÃƒÆ’‚¢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
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In reply to: Vilmac on Sunday 04/05/08 10:02pm

Hi Vilmac Thanks for that Your follow up was very well done Cheers Towie I welcome more input from yourself along with others We have a very long and HARD journey ahead Cheers Towie

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In reply to: towie on Sunday 04/05/08 10:45pm

We have a very long and HARD journey ahead




I disagree. I think ANZ will be crazy not to cut a deal.


I appears there are now at least 14 seperate points on which ANZ has acted "foolishly".


At this stage ANZ can get away with being stupid. If this drags through the courts ANZ is running the risk of being found not only foolish, but criminal.


The odds against them being ok on all 14 points is slim.


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Judge Finkelstein specifically precluded other facts and circumstances yet to be tested. In particular, that deceptive and misleading conduct redefines a contract, via the growing list of abandonments of the AMSLA just tested.


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In reply to: 29101971 on Monday 05/05/08 05:10pm

We should have in excess of 20 classes of abandonment for ASIC to follow through to prosecution of ANZ. How many times....20 abandonment groups times hundreds, thousands...god knows...could be tens of thousands of individual prosecutable actions by the Bank over the 4 year period...the most obvious being the non lodgment of substantial shareholder notices.




Is Finkelstein due to add a codicil to his judgement tomorrow??





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In reply to: Vilmac on Monday 05/05/08 06:30pm

I am not certain whether he will or not at this early stage. It seems the important thing hereon is to actually ask him (or whoever else is presiding) the right question in future test cases, something to the affect that: "Was their an abandonment by either party to the AMSLA agreement?".


Some comment found by tain (HC) in one of Da Fink's earlier trials seems very encouragaing (in light of the growing list of ANZ abandonments now coming to light):


CGM Investments Pty Ltd v Chelliah (with corrigendumdated 11 April 2003) [2003] FCA 79 (14 February 2003)


"18 In my view, the authorities to which I have referred establish not only that an agreement can be abandoned by conduct, but also that the question whether an agreement has been abandoned does not require one to examine whether the parties actually had the intention of abandoning the agreement; only whether their conduct, when objectively viewed, manifests that intention. This conclusion accords with the objectivist theory of contract which is now irrevocably entrenched in our law: Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422".

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In reply to: 29101971 on Monday 05/05/08 06:45pm



Sorry mate, thought I read in one of the newspaper articles reporting on the decision that the Judge was to release asdditional comments on 6th.


Do agree with you though that a concerted well organised challenge is being organised. This does not include other class actions that are being set up or even the other people waiting patiently in the wings before they mount their challenge.


I am sure the right question will be asked sooner or later. I think there will be wave upon wave of litigation against ANZ until the walls are finally breeched.


One seperate question which must be asked is how much bad publicity can ANZ absorb. Just as one wave dies down another case brings all of the stuff up again. Could last years!!!



As I recall another 2 cases are due to start. One in Brisbane (June?) and another in Perth?



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