first port of call will be nemo dat and Miller vs Race.
now your post MOONdog. a couple of comments to it
>>>>>OPES investors agreed to a scheme whereby to loan on margin, they gave ownership of the shares to a third party.
i want to know what the consideration was, as well as what the "scheme" was. i do not believe that buying shares is a "scheme".
>>>>>They then took out a position offered by OPES on OPES terms and conditions.
of which reasonableness, normal, fair, oppressive and unconscionable will be key facts for the courts to determine
>>>>OPES were able to offer these positions using money lent to OPES by the third party using the investors shares as collateral.
did Opes clients contract with ANZ is one issue. One sidedness, reasonableness, and Nemo Dat. just because one says they own something, does not mean they do. contracts can be voided for many reasons.
>>>>The investors collateral was to be treated as a debt owed by OPES to the investor at the unsecured creditor level in the event that OPES went insolvent. This is clearly spelt out on the OPES website and the PDS.
Moon can you point me to that in the PDS, i can't see it and yes it is critical. what their web site says is irrelevent. it is express to the contract? is it subsequent?
in any regard this is the heart of it. Is it reasonable, is it oppressive? what consideration did Opes offer clients in exchange for that binding nomination? how many other companies do this? is Opes the only one tat did this. are sharebrokers implicit in misrepresenting, are Opes, is there collusion, is this the only client ANZ have ever dealt with that does this. What internal notes will be found in ANZ files discussing this. did ANZ contact individual shareholders / clients of Opes to introduce themselves? i cannot see what Opes offered beyond normal margin lending facility, that enables them to take other assets as collateral.
>>>>OPES also warned investors in the PDS that they did not provide investment advice and that therefore each prospective investor should seek out independent financial advice.
irrelevent. legality is key
>>>>>OPES apparently offered margin loans on all ASX 300 companies, including many that the normal margin lending outfits wouldn't touch.
irrelevant. normal course of business. no one will argue Opes right to take security against shares margin leant against- to the extent that margins are covered. how far does recourse go- and to protect other peoples interests?
>>>It was a high risk, complex arrangement.
what? margin lending? complex? it just seems one sided and other words i wont write or fear or libel in regards to my opinion as to who knew who was being taken advantage of.
>>>>The investors think they should be treated individually even though they agreed to be unsecured creditors.
well i need to read this bit to really understand it. again can you refer me to it. i'd think a covenent like this, which is so unusual, would require witnesses and separate waivers, it appears that the ANZ, ASIC and ASX didn'tX
>>>>Sorry, the scheme has failed, and now you will have to accept the consequences of YOUR actions, not anyone else's.
i really don't think you and i would get along, certainly not christmas card buddies. YOUR actions?? have a bit of empathy here. not all were greedy schemers. (what scheme)
>>>>ANZ as owner of the shares have every right to dispose of them as they see fit, the same as you had every right not to get involved in this scheme in the first place.
and the woman raped had every right not to walk down that road at night?
>>>>You are now an unsecured creditor to the OPES company under administration, and will have to fall into line behind all the other creditors of OPES.
you love this unsecured creditor bit. i disagree that they are creditors. i fail to see what consideration was made by ANZ and Opes to those who it appears unwittingly covenented ALL of their securities to Opes and ANZ in exchange to margin lend some securities. How can one person in a cash account be exposed to a $1,000 loss and another in a cash account a $1m loss, when they are only likely to receive the same potential outcome- which was nil. thats doesnt seem equal reward yet one suffers disproportionally.
>>>>>By the time the administrators, employees, secured creditors, taxation & government charges get taken out, you will then receive a distibution based on what is left. This is no different than if you are owed money from a company that goes broke.
but what was this scheme. where were they investing in Opes like it was a listed share? what was their consideration and reward from Opes in this? surely ANZ must have asked this along the way.????
>>>>>I don't understand why the OPES investors think they should be given preferential treatment now that things have gone bad.
probably because they believe they have been misled and exploited, and robbed! (not saying that they were, all you legal people, just stating what they possibly feel)
>>>>>It doesn't work that way. Your individual position, what you owed, how long your were with OPES, what your investment was worth at the time the administrators were appointed etc. matter little now.
again, what if the contract said unlimited liability for Opes defaults. would ANZ then be ablet o come and take their houses and cars?at what point is it an oppressive arrangement which enabled ANZ to make money by lending to Opes? again Nemo Dat (equiv)
>>>>>You will now only be entitled to recieve a proportion of what is left times what you were owed, in cents to the dollar.Hopefully the ratio is high so the losses aren't huge.
i do not feel confident that there is empathy in that last sentence
>>>>>If, and it's a big unknown at the moment, it can be proven that there was illegal or fraudulent activity then the OPES investors (now unsecured creditors) may be able to take action against those persons or entities that were at fault.
how much contract law have you studied? theres a lot more options that recoveries for fraud or illegal.
>>>>And if any of the investors took the OPES advice and obtained licensed financial advice before getting involved, they may very well have a good case to sue their planner as well.
were they "investors" or just trading shares through Trader Direct? were they sent financial statements by Opes> did they get the right to vote? choose the board? attend shareholders meetings? could then enjoy any of the rewards of an increase in OP's profitability?
>>>>I bet there's hardly any who sought advice though.
i agree, and this is the heart. were they purporting and holding out to be a mere transaction provider, and in the case of margin lender, only taking security against those shares lent against?
>>>>People getting involved in complex risky investments without fully understanding the risks or the consequences.
i would suggest that buying shares through a sharebroker is not taking a complex risky investment. an entire industry is built upon savings and investment, and investing in australian shares, and laudingthe sophistication of australians for investing in listed companies.
>>>>Self managed super funds will be the next problem area, jsut you wait and see
as well as pointing me to the clause in the PDS as requested, can you elaborate on this please
