An interesting slant on the story and thoughts I think I have read echoed in threads by some HC posters:
While ASIC has preferred to focus on the whereabouts of the Opes executive Laurie Emini - and is believed to be investigating Friday's events - ANZ's position as secured creditor may be compromised. Under "preferential payments" laws a charge can be voided if it has been made within six months of receivers being appointed. ANZ took its charge a week before appointing receivers.
In ANZ's defence, it had title over the stock and therefore the right to sell it. However, any payment from Opes to ANZ over the past few weeks may be rendered void under the preferential payments legislation, and this is something the administrator may pursue should it become a liquidation.
"ANZ has owned the shares which secured Opes Primes debt at all relevant times," said a spokesman for the bank. "ANZ has been selling the security portfolio as its owner, not pursuant to the charge.
"In practice, the charge covers all residual assets of Opes Prime and forms security for an additional facility advanced recently to Opes Prime."
It is incredible that ANZ had an exposure of $650 million or more to the high-risk prime broker before it took its charge. Opes did have a close relationship with the ANZ, though, and is believed to have had regular meetings with Opes executives and would have been keenly aware of the prime broker's specific exposures.
It is understood Opes lenders may have taken charge, or even sold, stock belonging to Opes client super funds. As super assets cannot be transferred to a third party, the banks are vulnerable to legal challenge on this front. [email protected]
