June 21, 2020

The Rise of the Phoenix

"He who was but now the sire comes forth from the pyre the son and successor; Between life and life lay but that brief space wherein the pyre burned."    The Phoenix by Roman poet Claudian, 4 AD 

According to legend heard at Heliopolis in Egypt, there exists a fabulous bird called the phoenix, like an eagle, with feathers of red and gold. When this bird's life draws to a close he builds a funeral pyre, commits himself to the flames and dies. Out of self-immolation a new phoenix emerges on the fiery altar. 

In modern commerce the phoenix bird is iconic, inspiring businesses burned by debts to rise from the ashes of destruction and continue trading under a different name, leaving their creditors behind.

Curbing the Flight of the Phoenix describes how phoenix moves are used by companies in insolvency to divest liabilities:

"Like the mythical bird that dies and then resurrects, phoenixing is the deliberate liquidation of a company to avoid paying tax, creditors or employees and then the ‘resurrection’ of the business through a different entity. It is illegal. The negative impact of insolvency is magnified by phoenixing, which enables a company that owes money to creditors and employees to restart without paying its debts.

Phoenixing is illegal, but that's not much of a deterrent, and it's become a booming business for delinquent company directors and their facilitators, insolvency liquidators, lawyers and judges.

Nightcap on Minjungbal

As the Australian government was legislating new offences to deter illegal phoenixing, a case before Qld Federal Court during 2017-19 challenged alleged phoenixing of the company Wollumbin Horizons Pty Ltd, slated for receivership by Vincents' liquidator Steven Staatz.

The company owns property that is now advertised by Nightcap Realty and other promotors as part of a proposed land-share development run by Sovereignty Activists. 

The venture was called Bhula Bhula Village Community in 2015-2017,  and is now renamed "Nightcap on Minjungbal". It is run by an anonymous Sovereignty Activist, "Mr X," in partnership with landowner Peter van Lieshout, brother of John van Lieshout, Queensland's top billionaire.

Closed Sphinx Rock Cafe
Nightcap Realty is marketing "Native Title" to private properties without development approval,

The matter involves 21 investors who, in 2014-2016, paid more than $2 million to the Trust Account of Mullumbimby lawyer Wroth Wall, as intended co-owners of property in the venture, with total failure by the Sovereignty Activists to fulfil their marketing promises.

The economic impact of illegal phoenix activity 

Phoenixing is illegal, but that's not much of a deterrent, and it's become a booming business for delinquent company directors and their facilitators, insolvency liquidators and legal professionals.

ARITA slams phoenix moves:

Australian Restructuring Insolvency & Turnaround Association (ARITA) chief executive John Winter told Accountants Daily:

“These unregulated and almost-always unqualified advisers promote their wares to often unsuspecting people who are in financial distress, and what they offer them is generally illegal solutions...

“The message needs to be sent to these so-called advisers and the directors who use them that they will be found out and prosecuted.. They are a scourge on the economy, ripping off creditors, employees and taking advantage of people at their weakest moments.”  
"Phoenix companies arise from the ‘ashes’ of a collapse of a commercial entity, leaving behind a trail of avoided outstanding payments to tax authorities, creditors, businesses, customers and employees." The Economic Impacts of Potential Illegal Phoenix Activity

An Australian Inter-Agency Phoenix Taskforce made up of 29 government agencies aims to reduce the impact of illegal phoenix activity. 

Thirteen Commonwealth government agencies, including ASIC, the ATO and Fair Work Ombudsman have powers to investigate and prosecute "phoenix activity" or "phoenixing". But usually they don't.

"The Federal Court has commenced public examinations on entities connected to a dodgy pre-insolvency adviser, in a move welcomed as shining the light on illegal operators.

"ATO deputy commissioner Will Day has confirmed that more than 45 service providers, clients, employees, and alleged ‘dummy directors’ of phoenix companies connected to pre-insolvency adviser Philip Whiteman will be examined in the Federal Court on the grounds of suspected promotion and facilitation of phoenix activities and tax schemes." 

In July 2018, the Phoenix Taskforce published a report, The Economic Impacts of Potential Illegal Phoenix Activity, that defines illegal phoenix activity as the deliberate and systematic liquidation of a corporate trading entity which occurs with the intention to continue the operation and profit taking of the business through other trading entities, while avoiding liabilities: 

According to the report, the annual economic impact of illegal phoenix activity is over $5 billion a year. 

Until now very little has curbed the rise of the phoenix as companies in default increasingly use liquidation as a means to divest liabilities, but that's changing.

"Regulators are aware of the problem. ASIC announced in September it will conduct surveillance of 1,400 target companies and approximately 2,500 individuals... Concurrently, the ATO announced it will investigate 2,000 property developers..." Curbing the Flight of the Phoenix

Regarding the anticipated phoenix move involving the property at 3222 Kyogle Rd, Mt Burrell, in 2017, company director, Mr X,  after driving purchase money creditors off the land without restitution, then pushed for liquidation of the company owning the property that would potentially divest company liability to creditors of over $2 million, while, under a different name, continuing the same business of selling dwelling sites without development approval on property where multiple occupancy is currently not permitted. 

Australian courts have absolute authority to stop illegal phoenix activity and to impose penalties on delinquent directors and complicit liquidators. But, usually they don't, as the self-represented defendants discovered in 2019, when QLD Federal Court Judge, Derrington J, refused to hear evidence of alleged fraud, and slapped a suppression order on a class action requesting justice. 

In May, 2020, an application to appeal from the 2019 decision by Derrington J to permit the anticipated phoenix move, was summarily rejected in Qld Federal Court of Appeal, without hearing evidence.

Justice denied, Qld Federal Court of Appeal therefore allowed the expected phoenix activity to proceed.

June 18, 2020

Nightcap Nightmare!

Local opposition to Nightcap Village proposal, 2008

The first attempt to build a Village in an environmentally protected Tweed valley began in 2007 by landowner Peter van Lieshout, when his wife, Joan van Lieshout was Tweed Mayor

Despite a storm of local opposition, development approval was granted in 2009However, Peter van Lieshout was unable to complete necessary infrastructure, the venture failed and development approval lapsed.

Peter and Joan van Lieshout

In 2006 Nimbin GoodTimes reported local opposition to a proposal for a "Village Community" in Tweed Valley: "Nightcap Nightmare: Tweed "Village" proposal sounds alarm bells".

Nightcap Nightmare 

The project was rebirthed in 2016, when Peter van Lieshout made shareholder agreements with Sovereignty Activists controlling a failed neighbouring venture, Bhula Bhula Village Community, that left purchase money creditors disenfranchised. 

In collaboration with Peter van Lieshaupt, the Sovereignty Activists began advertising residential lots on the adjoining land with Tyler Tolman, son of American health celebrity, Don Tolman.

Peter van Lieshout with Tyler Tolman

Mountains of Warning

Buyer be warned! 
Mount Warning Eco Village- a fresh face and a different name for the same old game.  

Attractive online façades with changing names and faces conceal a long line of creditors pressing for restitution. Promoted by Mark Darwin, the current lure, “Mt Warning Eco Village” is sold as an exciting opportunity to be part of an up-market “intentional community” dedicated to an alternative lifestyle. The sales pitch sounds smooth, but baited buyers are not warned that habitation is not permissible on the residential sites offered for sale. 

Once hooked, new financiers soon wake up to harsh reality; a hidden history of hurt, harm and betrayal that has already spat out many disillusioned investors.

Mark Darwin and Associates

Mark Darwin, Caroline Coman
A renowned snake-oil marketing master, in 2014-2015, Mark Darwin presented himself as a former high-flying finance-monger who says he had a glorious epiphany when he was healed of a brain tumour by Tyler Tolman’s celebrity father, Don Tolman. 

He tells how he was reformed to serve a higher cause, transmogrified from a scurrilous money-grubber into a humble lifestyle guru, saving people from corporate enslavement - for a fee - by sharing "Freeman"/"Sovereign Citizen" tricks, such as how to get off paying fines and how to use the legal system for commercial advantage. 

"Sovereign Citizens" live by their own mashup of common law that's held above government statute. They assume that an imagined collectivist cause confers on them the right to trample truth, discard moral and ethical oversight and ignore legislation that constrains normal mortals from anarchy. 

Truthology - A Matrix of Lies

Beginning in 2014, followers of Mark Darwin were enticed to fund the venture through an online front, Truthology”.  

Freedom Summits” linked with Create A Foundation” apparently aiding abused girls, flying under the radar of a dynamic, compassionate activist movement with a sagacious international following, presented a land-share venture offering sale of residential lots. 

Darwin called for “selected” investors to jointly buy land and form a “Village Community.” By 2015 he had acquired $1.5 million and established Bhula Bhula Village Community” at 3222 Kyogle Rd, Mt Burrell, NSW. But his contractual terms were later dismissed or switched, after investors had fully paid. 

The Law of the Brute: They score the loot, investors get the boot. 
Employment of a town planner enhanced appearances that development permits were in process, but investors were misled by lack of warning of risk, with the silent omission of known restrictions on potential land use and hidden "Sovereignty intentions". 

Tweed Council also strongly warned the aspiring developers that no community would be permitted on that property because parts of it are protected as rainwater catchment. Yet these warnings were all kept hidden from investors.

Soon after the communal venture began, families who had been camping, preparing to construct their dream homes discovered too late that the supposed Village Community was set up to be governed by an un-executed Trust that was later used to betray the trust of the supposed "unit holders" when investors who paid for the land were disenfranchised with only a beneficial interest in the empty Trust.

After Tweed Shire Council took legal action, the developers  forced investors to leave the Mt Burrell property without return of their money.

Mark Darwin’s partner, director and sole shareholder in the company owning the land, holding a single share of value $1, still asserts control as the illegitimate yet legal sole owner of the land asset. 

"Recreating the Village" Promotional Presentation in Sydney

By August 2015 the hidden intent of the developers was revealed. An archived video recorded at a sales pitch in Sydney“Recreating the Village” was posted online, but is now removed. “Recreating the Village” demonstrates how the developers set up an apparently impenetrable fire-wall protective structure using the services of the conveyancer, lawyer Wroth Wall.

During the sales presentation, (min 40) Mark Darwin assures his audience that “sweeping legislation allows for habitation” on the Land and he demonstrates contempt for local authorities and neighbours: 

Mark Darwin: “We’ve already been contacted by Tweed Shire Council, 48 hours after settling... the locals have already contacted Santa Clause ... they’ve accused us of carrying out illegal works and all sorts of stuff. But we want to develop a relationship with them... Cough-cough.” 
AB: “Bullshit!... We’ve ruffled a few feathers.

Mark Darwin: “And if you know AB and I, we don’t get bullied by authorities!” 

Darwin admits that apart from their willingness to comply with construction safety standards for residences, they do not intend to seek any prior Development Approval, but intend to get “current approval status” extended.

Only an inner circle knew that the advertised lots were reserved for future water catchment to a proposed dam at Byrrill Creek. 

In December 2015, an independent town planning report was issued, advising that multiple occupancy would not be allowed. The report was hidden from investors, who were encouraged to build dream-homes with exotic mountain views.

The developers then appointed themselves co-directors of a new company, Rainmaker Eco Investments Pty Ltd, and used investors' funds held in the trust fund of lawyer Wrothwell Wall to purchase an adjoining commercial precinct, at 3220 Kyogle Rd, including Sphinx Rock Cafe, shops, fuel servo and a caravan park.

Mt Burrell Commercial, purchased by Darwin and associates in 2016

Nimbin GoodTimes

The Mt Burrell land-share venture was first exposed as an alleged scam in October 2016 in a Nimbin GoodTimes article, The Truth About Bhula-Bhula by Gi Linda

Legal action is in process by disillusioned investors in a community at Mt Burrell, near Nimbin. The community was founded by Mark Darwin through his organisation, ‘Truthology’. Investors warn that ‘Truthology’ presents a matrix of lies, using misleading marketing to facilitate acquisition of multi-million-dollar properties.  

“Investors paid up to $120,000 for fake shares in the 640 acre property and some also transferred their superannuation, falsely assured that development applications were in process and would be fast-tracked to approval."

Instead of making reparations to creditors, Darwin and associates sued Gi Linda for defamation, extended the “Village Community”  to a neighbouring property, formed a new company, Rainmaker Eco Investments, then went fishing for more investors.

After being exposed in several other local newspapers, Darwin and cohorts simply scrubbed online references to the venture, issued threats of extreme litigation to their opponents, then popped-up a new front and continued marketing a “once in a lifetime opportunity to own a town”

The land-share scheme resurfaced as they continued re-selling the proposed residential lots using a new façade: “Mt Warning Eco Village”. 

Darwin says they’re “recreating the village”. He promotes the venture as “ethical, sustainable and green” as he continues flogging shares in the community fiasco.

Great profit and special privilege can evidently be gained from the simple intent to “re-inhabit” land that is not legally habitable.

Sites for sale on protected land

Puppet directors Steven McSween and Richard Moate were set up to run the re-emerging "Community".

Despite the restrictions to potential use of the land and the failure to lodge development applications, the advertised "Community" is promoted nationally and internationally, and loans are sought to facilitate purchase of more land by Darwin and associates in a prospective shareholder agreement with neighbouring landowner Peter van Lieshout.

In 2016, with shares in the failed Bhula-Bhula Community still being sold, Mt Warning Eco Village was advertised as a unique opportunity to buy into an “entire town” on 3,500 pristine acres. Plans include a medical cannabis university and dispensary with a luxury spa hosted by international celebrity health coach Tyler Tolman, who runs an expensive Bali resort offering “Heal Thy Self” juice fasts. 

In August 2016 Mark Darwin posted online: “Now we've just bought the entire township of Mount Burrell, and are taking on investors who wish to join us... Tyler Tolman has secured space at our Intentional Community near Mt Warning.” Asked about his participation in the alleged fraud, Tyler Tolman confirms he is collaborating with the venture. 

Mt Warning Eco Village

Kelly McSween, Sales
Tweed Shire Council continues to warn the prospective developers that, as with the adjoining "Bhula Bhula" property, the area they are advertising as designated for residential lots in "Mt Warning Eco Village" is reserved for future water-catchment — no habitation is permitted.

For two years, with marketing by Kelly McSween, Darwin’s development team has continued advertising and selling residential lots in a purported “harmonious community,” headed by “new young energy”, without revealing their lack of DA approval, environmental constraints on use of the advertised sites, occulting the developers' hidden allegiance to the "Sovereignty cause" while also covering up the profound harm and loss caused to the original dispossessed creditors.

To silence critics, promotors aggressively confront and make defamatory ad hominem attacks against all who expose or oppose them.

The village, intended to span multiple properties with a projected total of 2,300 dwellings, is now advertised at mountwarningecovillage.com.au“Recreating the Village through Community Spirit and Respect of the Planet”.

Distancing the elitist Mt Warning Eco Village from neighboring communities of farmers and local pot-growing hippies who keep alive the communitarian values of Nimbin's 1973 Aquarius Festival, potential buyers are assured in marketing offers: “Make no mistake, these aren’t your daddy’s hippy communes”:

“Those who find themselves on the pioneering growth edge of communal living are calling for a return to our roots… and are advocating for a cultural resurgence of a new form of village living. Learning from both the successes and missteps of our parents’ generation, conscious Millennials and Gen-Xers are uniquely poised to Re-Inhabit the Village in ways the world has never seen.”

Mount Warning EcoVillage Website

Location of the property

Tours showcase the environmentally protected areas that are offered for sale with optional cabins for only $150,000:

“We encourage you to book a tour with us to explore this incredible 3,500 acre project. The tours are usually twice a month (on weekends) and commence at 8am (NSW time) and conclude with a lovely lunch at a log cabin in the middle of the property over looking Tallow Wood Dam at around 1pm. During the tour, you will meet the Founders, existing members, and also some local tribal elders who will welcome you to country, and show you how to introduce yourself to country over time…”

Environmentally protected land offered for habitation at Mt Warning Eco Village

To date, no development application has been approved for the establishment of a village on the protected land, and despite assurances by promotors that the venture does have green-lit DA approval, no Development Application has even been initiated.

Anyone who enquires about the advertised “ethical investment opportunity” in the Mt Warning Eco Village is first required to reveal their phone number. The automated response is slightly menacing: “We’ve got your number.”

Financial Scandal Destroys Secret Eden

By Charlie Peel, The Courier-Mail | 23rd Jul 2017

"A SECRETIVE colony for people who wanted to live off the grid in "earthships" has collapsed, leaving a community divided."

"Some out-of-pocket investors have been critical of the community's founders but others remain supportive, threatening The Sunday Mail with a class action should the paper publish an article," the Courier Mail reports.

"The Sunday Mail can reveal what was meant to be a dream Utopia in the forested foothills just over the Queensland-NSW border has turned into a nightmare. 

Villagers paid up to $160,000 each to be part of Bhula Bhula but have now split into squabbling factions as they try to protect or recover their investment."

June 13, 2020

Hot Line to the High Court

High Court of Australia 2020

A Notice of a Constitutional Matter is currently before the Attorneys-General, on grounds that the Sovereignty Activists controlling the land-share scheme are selling “Native Title” to “Rural Dwelling Sites” without development approval, on properties they do not rightfully own, and phoenixing a company owning land title that is void due to fraud

NSW Supreme Court, Qld Federal Court and the Federal Court of Appeal have all enabled illegal phoenixing by suppression of evidence of fraud.

June 12, 2020

From Nightcap Village to Earth-Haven Sustainable Communities

An Australian land-share venture that began in 2014 as Bhula Bhula Village Community, is now marketed "Nightcap Village," "Nightcap on Minjungbal" and also as "Earth-Haven Sustainable Communities and Display Villages".

Proposed site of Nightcap VillageAfter the original founder, Mark Darwin, withdrew from the project, other Sovereignty Activists with legal and financial control expanded the venture to greater heights of ambition, with greater depths of harm to their clamouring creditors.

In 2016, the incipient intentional community at Mt Burrell  was exposed as an alleged fraud in local newspapers, on social media and in our blogs.

Tyler Tolman marketing Nightcap Village

In 2017, Bhula Bhula was expanded to 3,500 acres with addition of a neighbouring property owned by Peter van Lieshout. 

The project, promoted by Tyler Tolman, was neatly rebranded as "Mt Warning Eco Village," until mountains of warning from angry investors crying "fraud" triggered another name change to "Nightcap Village". 

Nightcap Village soon became a living nightmare to unrequited creditors who were denied the use and co-ownership of properties, as promised in exchange for their life-savings.

Nightcap Village is now run by non-indigenous Sovereignty Activists selling "Native Title" to "Rural Dwelling Sites" without development approval, on properties taken from others who provided funds for their purchase.

An advertisement on Gumtreee by Mikala Lowe, director of Nightcap Village Holdings Pty Ltd,  offers sale of company shares in the venture. 

The company shares, negotiable from $295,000, are ostensibly convertible to prospective 2.47 acre dwelling sites in the "World's largest Eco Village". 

We allege that the advertiser, Mikala Lowe, is implicated in a planned phoenix move. Her husband, Eamon Lowe is executive consultant to the agency Christies Prestige, holding a Receiver's auction of the property we paid for, next week, on June 19.  

Mikala Lowe Nightcap Village marketing

Earth-Haven Sustainable Communities 

After years of costly and damaging litigation by the controllers of the venture, attempting to gag the increasingly vocal investors pressing for restitution, the land-share scheme turned from an alleged scam into an even bigger and better idyllic dream with a new name, promoted on YouTube and Facebook by fresh faces with large followings.

"Nightcap on Minjungbal" or "Earth-Haven" may look like a dream come true to some ingenuous and idealistic buyers seeking a life-change, but for those of us who are disenfranchised purchase money creditors; those who provided funds from 2014-2016 to buy the properties and were left with nothing but hurt and harm... to all of us, the land-share scheme now newly re-imaged, has been far from Paradise, and the governing mantra of the controlling Sovereignty Activists, "do no harm," does not heal our wounds.

For many of us whose funds and hopes sunk in this venture, those who lost everything in this bad dream, in our reality for the last five years, this imagined "Earth-Haven" has been more like Hell on Earth.

June 11, 2020

Nightcap Village: New Promises, Old Lures

In Australian courts, news reports and blogs, victims of an Australian land-share venture warn that Sovereignty Activists are selling dwelling sites in a land-share venturenow called Nightcap Village, that has been advanced without development approval.

Since 2014, these "Freemen" have swallowed-up much goodwill by making promises muscled by contrived urgency to induce payment of money to them. However, the marketing promises were not fulfilled, and the dream quickly became an ongoing nightmare, as life savings were sucked into a black hole and disappeared, with nothing tangible in return expect hurt and harm.

Under a functional legal system, such dishonesty could be stopped, but as "Freemen" relying on a false narrative and perjured affidavits, Sovereignty Activists intend the courts should bow to them.

As a result, those who lost life-savings have been denied justice for more than three years in four jurisdictions: the local Magistrates Court, NSW Supreme Court, Qld Federal Court, and Qld Federal Court of Appeal. 

A Notice of a Constitutional Matter has now been filed by the victims in an ongoing quest for truth and justice, to move the matter to the High Court.

Bhula Bula Village Community - Backstory to a Fiasco

During 2014-15, the Sovereignty Activists controlling the venture called Bhula Bula Village Community at Mt Burrell, NSW, sold the dream at public events, and secured finance without adequate contractual procedure. 

Potential investors were deceived by promises about legal advisers, legal structures and process, financial management, potential and permissible land use, property management and the status of development applications for land-share occupancy.

Marketing Hopium

Marketing Hopium
Gi Linda responds to malicious attacks by Nightcap Village promotors

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