The following is simply commentary and does not pretend or represent itself to be legal opinion.
If Opes did not hold legal title to the shares then it could not pass the title to ANZ it doesnt matter what the agreement between ANZ and OPES says the test of legal title must first be proved between the Opes and the customer.
Legal entitlement between the customer and Opes can be argued at trial on a number of points, if Opes did not comply with sophsicated investor requirements then legal title cannot be transferred under the Corporations Act, if ANZ confirmed beneficial ownership as is alleged to some owners then beneficial cannot be held by ANZ , verbal contracts are just as legal as written ones, if a contract has contradictory terms and conditions as appears between the 2005 and 2008 agreements then case law generally rules toward the more lenient term, if by behavior ANZ generally acted as if it wasnt the beneficial owner by not filing notices of sub holdings or did not transfer to nominee companies then the court may find that comply the Corporations Act and may forfeit its claimed title those shares.
If the court find that ANZ and Opes conspired to mislead investors as is claimed by several substantial shareholders and that these representations are found by the courts that they could be fairly be relied on then the court can easily nullify claimed title by ANZ.
If as claimed here a persons entire holding and life saving of 400k was invested in such instruments the title to the share has been not been achieved by Opes in a legally enforceable process so title can be invalidated by the court.
ANZ is not immune to Opes illegal performed by Opes in the process of gaining title, if a clear and legal passing of title has not occurred between the parties then the acquisition of title can be nullified at the point where exchange of title broke down.
Folsks that state "I am sure ANZ would have checked all this out " are not very legally savvy, ANZ had a related party responsibility to ensure it claimed in a legal manner. If ANZ employees and Opes conspired to mislead any investor then ANZ will be held responsible those employees behavior and contractually obligated to the undertakings those employees gave on behalf of the company.
I have seen many many contracts torn up by the courts based on the undertakings and representations given verbally by employees that were contractually different to the written contracts that were signed. In one case I managed for a major organization $140M was award to a company based on employee representations that contracted the contractual obligations, in that case the courts found that company voided the written contract by giving effect to verbal undertakings by its actions and that by these actions and verbal undertaking they had given effect to a new contract between the parties.
Folks need to remember that contracts are not just restricted to legal agreements written on paper, contracts can also be verbal and effected by the actions of the parties to the contract post the written contract. If for instance a contract can be shown to contradictory to the behavior of the parties then the written contract is only considered to be one component of the overall contract between the parties and there are numerous examples in case law of the written contract being set aside by the courts.
Folks who are posting terms and conditions up here and claiming these are the sole considerations of the court during a contractual dispute are as naive to contractual and commercial law as the folks that signed them without reading the terms and conditions.
if for instance an Opes employee has made misrepresentations to a share holder via email as the their entitlement to full beneficial entitlement ownership then this representation will be read with the contractual terms and given what weight to the court finds appropriate.
For instance if you were a traderdealer brokerage customer you would have signed these terms and conditions (well at least some of you would have)
If you were subject to these terms and conditions IMO you were a pure brokerage customer for the smart bums who think they know everything please review these terms and see if you can identify where folks lost title to their shares?
Its all very complex and will be settled by the courts in the fullness of time but folks please dont offer legal opinions where you have no experience
The Opes folks here have enough heart ache to deal with and most of the folks here have no idea
I would like to underline as well that none oif the above constitutes a legal opinion in any way , its just commentary and folks need to get their own legal opinion from a qualified attorney, each case is individual and should be dealt with individually by qualified and registered legal practitioners.
