July 26, 2020

Free Speech - Denied!


In response to a request by lawyer Billy Fitzgerald, Rose Litigation, who represents the sovereignty activists featured in the book "Nightmare on Minjugbal," Google Corp has summarily removed most of the posts on this blog.

The posts have been censored because they supposedly violate injunctions imposed by NSW Supreme Court on the co-author and editor, Gi Linda, who is prohibited from imputing fraud to Billy Fitzgerald's clients.

The injunctions are based on Judge Fagan's 2019 decision that although more than 20 investors lost life savings when they paid purchase money for land in 2014-16, but received nothing in return, this cannot be described as a "scam" because the failure to fulfil marketing representations is mere incompetence, and does not involve deception or fraud by Mr Fitzgerald's clients.

The demand that nothing further may be said on the matter assists Mr Fitzgerald's clients to induct new investors into the project, by denying the trail of broken dreams and shattered lives, and the trials in Kangaroo courts where false narratives perpetuate injustice and impecunious victims have no recourse to vindication. 

Since the Supreme Court judgement, Mr Fitzgerald's clients have expanded the venture and renamed it "Nightcap on Minjungbal". They are now selling 867 dwelling sites without development approval, and offering new investors "tribal title" to "pre-DA" blocks on the contested property, starting at $295,000 each.

The legal gag on freedom of political discussion about this matter of public interest is contested by Gi Linda in a Notice of a Constitutional Matter requesting transfer of ongoing litigation to the High Court. 

Posts informing more details have been suppressed by Google Corp at Billy Fitzgerald's request.



July 25, 2020

Nightmare on Minjungbal


Nightmare on Minjungbal mirrors Nightcap Nightmare Blog, revealing the truth about an Australian land-share community. The "off-matrix experience" is run by sovereignty activists selling "Tribal Title" to dwelling sites without development approval.

The prospective land-share project began in 2014, under the auspices of Truthology and Freedom Summits as an intentional community called "Bhula Bhula Village Community" now renamed "Nightcap Village" and marketed as "Nightcap on Minjungbal"

Bhula Bhula, 2015

Between 2015-17, more than twenty families who provided purchase money for land lost their life savings, totalling over $2 million, when sovereignty activists linked with the aboriginal Minjungbal tribe seized control of the land-share venture, with significant impact also on local residents.

The book, Nightcap Nightmare, tells how the sovereignty activists forced investors off the properties they had purchased, then made shareholder deals with neighbouring landowner Peter van Lieshout, brother of billionaire developer John van Lieshout, before revealing intent to extend Aboriginal Sovereignty claims across the nation

July 24, 2020

Dancing on a Tilted Stage


By Gi Linda -

It is my experience that false narratives established errors of fact before Qld Federal Court and NSW Supreme Court of Defamation in 2019, resulting in misapplication of law and imposition of gag orders. 

Presumption that the courts have fully decided the matter and nothing further may be said is not only an egregious attempt to suppress truth, but is also
 an abuse of legal process that denies justice. 
This interferes with the true exercise of justice and advances dominant commercial interests under colour of law by constraining legitimate freedom of discussion on matters of public concern.

If dominant political and financial interests are also allowed to profit with impunity by summary imposition of draconian censorship by Google Corp based on misapplication of law, the abuse of due process could effectively subvert Constitutional protections over the rights of citizens to public discourse.

July 20, 2020

Contumacious Contempt of Court


Con•tu•ma•cious: Obstinately disobedient or rebellious; insubordinate; resisting legitimate authority. Specifically in law, wilfully disobedient to a lawful order of a judicial or legislative body, or showing wilful contempt of its authority.

By Gi Linda

Eager to sell prior to development approval, a new video marketing 867 prospective dwelling sites with "tribal title" at Nightcap Village has been released online, further promoting a false narrative that has been endorsed for over three years by four decisions in Kangaroo Courts in favour of the dominant commercial interest.



On a fanciful level playing field where lawyers are not paid agents of deception, where all lives mattered and all voices were heard, truth would be upheld and justice would be done, with fairness to impecunious victims.

Dancing on a tilted stage where justice follows the money, my personal experience has been a shocking eye-opener, to say the least!

On July 17, I was informed by email from Rose Litigation that their clients, two plaintiffs who brought defamation charges against me in NSW Supreme Court in 2017, have now filed charges of contumacious contempt of court because I continue to denounce their false narrative as snake oil.

The defamation case was filed in 2017, after I published information about a land-share scheme at Mt Burrell in which I and other investors lost our life-savings during 2014-2016.

During 2017, under adjudication of Justice Lucy McCallum, two applications by the plaintiffs for urgent interlocutory injunctions failed to suppress publication of allegations of fraud.

Lawful Injustice


Two years after the defamation case began, a 6-day trial in August - October 2019 was heard in two parts by Fagan J, who reserved judgement for six months before deciding in favour of the plaintiffs. 

During the trial I presented evidence, based on my personal experience and the evidence of other investors, that the plaintiffs offered sale of dwelling sites without development approval, taking money from people and giving nothing in return. 

The Judge decided that this represents incompetence, not fraud. I was ordered to pay damages of $400,000 and the plaintiffs' legal costs estimated about $1 million. 


In May 2020, injunctive orders were made restraining me from publishing my opinion that since 2015 the conduct of the two plaintiffs has been highly dishonest and dishonourable. 

At the same time, one of the blogs was hacked. Defamatory imputations were posted and falsely blamed on me. Numerous websites were published anonymously using metatags related to Nightcap Village, but with garbled content, and wrongly attributed to me. 

The plaintiffs used the orders to induce Google Corp to remove blogs documenting events of the last four years that involve the land-share scheme.

Lawful Injustice - Blog removed by Google Corp in 2020

But the plaintiffs are not satisfied with abusing legal process to achieve a gag on legitimate discussion of matters of public interest. 

Since 2017, they have published several websites making vicious ad hominem attacks against me and other investors who also claim to have been defrauded and who continue to seek justice. Similar slanderous attacks are repeated in Nightcap Village newsletters published by the plaintiffs, and promotional videos featuring "celebrity" associates Tyler Tolman and Max Igan.

The plaintiffs now claim that a book in progress that I co-author and edit, currently published in blog form at the domain nightcapnightmare.com, violates the injunctions. 

The contempt claim surmises that dishonour is imputed to the anonymous second plaintiff. In our book he is called "Mr X"

Hiding behind a screen of anonymity since 2014, using only initials for identification, Mr X has appeared at public events and in marketing videos selling dwelling sites without development approval. It may seem incongruous that from 2017-2019, he insisted before the Court that he had no significant role in the venture, except for support in an "IT capacity" and as a bankrupt shareholder in Nightcap Village. 

Mr X currently introduces himself to potential new funders as the "project director". His contempt charge complains that although in the blog-book "Nightmare on Minjungbal" his real name is withheld, with a little research readers can discover his identity. 

Defining the supposed contempt as "contumacious" makes it in effect a criminal offence, punishable by fines and imprisonment. A hearing date set for July 24 does not provide reasonable time to prepare a defence.

My request for reasonable time to prepare a response to their request for my imprisonment, was refused by the plaintiffs. 
 


Nightmare on Minjungbal


"Nightmare on Minjungbal" is a a book in progress; a compilation in blog form of accounts by several authors, revealing how "Dreams turn to nightmares when Sovereignty Activists seize a land-share venture, with a battle for justice fought on the tilted stages of Kangaroo Courts"

"Nightmare on Minjungbal" reveals how investors lost life-savings in the land-share scheme that began in 2015 as "Bhula Bhula Village Community" and is now called "Nightcap Village," or "Nightcap on Minjungbal"

Nightmare on Minjungbal

I am one of 20 investors who provided in total over $2 million to purchase two properties at Mt Burrell in 2014-15. We were promised dwelling sites with co-ownership of land in exchange. The marketing representations were not fulfilled, and our dreams soon turned to living nightmares that still continue. 

Notice of Constitutional Matter


I contend that the claim of "contumacious contempt of court" is part of a "SLAPP" action. "Strategic Litigation Against Public Participation" is a corruption of legal process typically used by a bullying party to discredit and harass opponents, and to silence the legitimate dissent of victims.

Free Sprrech *Conditions Apply

In response to the contempt charges, I have requested a 28 day adjournment to prepare a defence and cross-claim. A process has been initiated to move this case and other related litigation for adjudication before the High Court of Australia.

Constitutional matters are involved, with suppression of  freedom of discussion on matters of public concern involving the marketing of "tribal title" to dwelling sites prior to development approval, on properties that were paid for by investors who received total failure of consideration in exchange for their funds. 

In this case, it is my experience that false narratives established errors of fact before NSW Supreme Court of Defamation, resulting in misapplication of law and imposition of gag orders. This interferes with the true exercise of justice and advances dominant commercial interests under colour of law by constraining legitimate freedom of discussion on matters of public concern.

July 09, 2020

Celebrity Chef Pete Evans Cooking Up A Storm at Nightcap on Minjungbal


After a contract was signed with controversial Celebrity Chef Pete Evans, an expected "momentous boost" in sales of Tribal Title to dwelling sites without development approval at "Nightcap on Minjungbal" was announced. The news was posted to Nightcap Village Inner Circle and potential new investors in the sovereignty scheme


Extract from Nightcap on Minjungbal Marketing / Sales News by Derek Zillman

"Nightcap: quick update 8th July 2020 

...exciting news is we will shortly be announcing publicly the involvement of Chef Peter Evans with the project.


Pete Evans is an internationally renowned chef, restaurateur, entrepreneur, key note speaker, author, television presenter and documentary producer. He also has a podcast called HEAL with Pete Evans, exploring nutritional and emotional wellbeing.


Pete will be making similar announcements via a movie that is being made by him now and over the coming years about the project. 


This is a long term commercial arrangement that has been negotiated and signed with Peter, by AB and Gunham, and this partnership will be a momentous boost for the sales campaigns and the community moving forward."


Pete Evans has been informed of ongoing litigation contesting the land-share scheme that he now promotes, but he chooses to turn a blind eye to angry investors who have lost life savings in the venture since 2015.

 

July 05, 2020

Nightcap on Minjungbal marketing "Sacred Land"


"For us, it's our staging point for our expansion in the rest of the country."

Promoters of the land-share venture, Nightcap Village, are selling a lifestyle dream with a social justice vision and a reverential greeting, "Welcome to Country!"

"Mr X" is the self-identified "White Aborigine" who introduces himself to prospective investors as the project director. 

He wants the 3,500 acre venture, "Nightcap Village," also called "Nightcap on Minjungbal," to be recognised as an Aboriginal Sovereign Nation and extended across Australia. He says the Minjungbal Tribe are happy with the land-share scheme.

Prior to development approval, Nightcap Realty is selling a total of 867 dwelling sites in the prospective Village Community. Blocks are offered at $295,000 each with "Tribal Title" and special discounts

Nightcap Village Concept Plan

Nightcap Village Concept Plan

"It's available to everyone within price point."

The Mysterious "Mr X"

"Mr X" cannot be named. "Mr X" is the pseudonym he used as a presenter in Freedom Summits 2014, where the land-share venture was first marketed. 

In 2016, as sole director with a $1 shareholding controlling the company used to purchase a property for more than $1 million, Mr X took advantage of litigation by the Land and Environment Court to collapse the community called "Bhula Bhula" leaving purchase money creditors destitute.

Mr X then retained legal ownership and personal control of the property.
 
From 2017-20, he used NSW Supreme Court of Defamation as a bludgeon to silence dissent. As a result he obtained the protection of Court Orders that prohibit publications imputing to him any dishonourable conduct. 

At the close of a six-day hearing of defamation charges against one of the defrauded investors, journalist and documentary filmmaker Gillian Norman, (Gi Linda), in October 2019, Judge Fagan concluded that although the controllers of the land-share venture had taken people's money and given nothing in return during 2014-17, the debacle resulted from incompetent management, not fraud.

Six months later when Fagan J published his final judgement strengthening Australia's already draconian defamation laws, he ignored evidence that Mr X was running a scam, and awarded $400,000 aggravated damages and legal costs estimated about $1 million, to be paid by Gi Linda to the plaintiffs.

In contrast to facts of reality, Mr X, the first plaintiff, repeatedly affirmed before the Supreme Court that from 2014-17, he was bankrupted by the "Bhula Bhula" fiasco and played only a minor role as an IT consultant

Mr X assured the Judge that he had no continued involvement in the venture when it was renamed "Mt Warning Eco Village" and "Nightcap Village," except as a bankrupt shareholder.

Nightcap Realty Promotional Video

In June 2020, Nightcap Realty distributed a video presented by "Mr X" with Mark McMurtrie (Gunham Badi) and marketing manager Richard MoateThey have been adopted into a Minjungbal Tribe that claims an original inheritance of land from early inhabitants of the Tweed Valley.

Nightcap Realty Promotional Video, June 2020

"Part of living here is.. you buy in, you buy a block"
"Part of living here is.. you buy in, you buy a block"

Tribal Title on Sale

Promotors elevate the potentially lucrative venture to presumed higher virtues: communitarian wealth-sharing, and the proposed return of "Country" to Aborigines, based on a belief that they should be recognised as the "true owners" of all Australian territory. 

The proposed indigenous autonomous zone appears similar in concept to the 6-block land-grab called Chapel Hill Autonomous Zone, "CHAZ" that morphed into "CHOP" before it was removed in July 2020 from downtown Seattle, USA.

In the Nightcap Realty promotional video, Mr X proposes that "within price point" investors of any nationality could buy into the Sovereign Minjungbal Nation, become "Community Members" and receive dual citizenship.

Nightcap Village Community Rules establishing enforceable private laws, and guidelines providing protocols for submissive deference to Aborigines are included in the marketing package.

"The Minjungbal people are happy..."
A Minjungbal Elder is introduced to new investors by Richard Moate

No compliant development application has been submitted to Tweed Shire Council since the venture began in 2014, even so, a Nightcap Village Newsletter published in June 2020 by Richard Moate, falsely claims approval already exists for 424 dwelling sites:
"Most of you are aware of the existing DA approvals for 424 sites, and that over $2.1 million dollars was spent on the DA submission of last month, taking the project to over 850 spots."
"As we approach the end of another financial year and are witnessing the unprecedented changes to our world, the Nightcap Village on Minjungbal continues to buck the trend with its ground-breaking collaboration with the Elders of this sacred space. 

Enormous gratitude and thanks to Gunham Badi Jakamarra of the Original Sovereign Tribal Federation and the Minjungbal Elders particularly Uncle Arty and Uncles Dean, Mark, Scotty & Jonno (amongst others) for sharing so much knowledge and wisdom throughout the journey. For the development team to be working alongside such learned individuals in ensuring that the land, the law, the sacred sites and the true owners are honoured and respected, is truly a privilege.

Most of you are aware of the existing DA approvals for 424 sites, and that over $2.1million dollars was spent on the DA submission of last month, taking the project to over 850 spots.

The team are now also extremely proud to announce the successful purchase on Friday of last week of a parcel of land of over 650 acres, further strengthening the future points of access for the Original owners and the community. Needless to say, there was some celebrating to be had both on Country and by members of our community around the world.

We have some exciting works in the pipeline, including not only one documentary already in production, but also the (long awaited) virtual tour of the land and our new and improved website.

We’ve attached a few images taken over the weekend for those of you yet to see the land. If you like our vision and haven’t already, please complete and return your questionnaire to rich@nightcaprealty.com so we can get to know each other. We hope to meet many more of you on Country next time."



Nightcap on Minjungbal marketing offer:



Off-Matrix at Nightcap Village



Tyler Tolman selling shares in Nightcap Village in 2018



July 03, 2020

Land-Share Under Colour of Law



At first, a Mt Burrell land-share venture was advertised as an "ethical investment opportunity" offering co-ownership of land to those providing purchase money for two properties to be used as an intentional community called Bhula Bhula Village Community and Mt Burrell Commercial.

From 2014-16 the venture was given credibility by attachment of Mullumbimby lawyer Wrothwell Wall as "Community Lawyer," into whose trust account "ethical investors" poured over $2 million in good faith. 

After details of financial scandal were revealed in the media and courts, the venture was expanded and renamed Mt Warning Eco Village, offering shares swappable for dwelling sites, and development approval "coming soon".

With ongoing court battles and blogwars, the name was changed again to Nightcap Village, Nightcap on Minjungbal, and currently in 2020 is also marketed as "Earth-Haven Sustainable Communities"a Sovereignty land-share scheme.



Dwelling-sites on sale without development approval

Prospective "ethical investors" were wrongly assured that land share occupancy was allowed on the property with development approval in process, the false representations triggering litigation by Tweed Council in the Land and Environment Court. During 2015-2017, investors were denied promised co-ownership, and evicted from the property without restitution of funds.

The contested land was mortgaged in 2017 by Mr X, who requested receivership of the property by Vincents' liquidator, Steven Staatz, in an alleged  phoenix move intended to transfer legal ownership of the property to Nightcap Village, while divesting liability to "ethical investors".

The lure, Bhula Bhula Village Community, 2015

In 2015, Wroth Wall facilitated purchase of the first property at 3222 Kyogle Rd, Mt Burrell, through the company Wollumbin Horizons Pty Ltd, using funds deposited in his trust account by  the "ethical investors".

Under colour of law, Mr X then appointed himself sole company director and established his legal ownership and personal control of the property with a single $1 shareholding.

Proposed dwelling sites, Bhula Bhula Village Community, 2015-2017

Again using investors' funds, an adjoining property at 3220 Kyogle Rd, including the iconic Sphinx Rock Cafe, servo, shops and caravan park, was also purchased through a private company. 

Angry, disenfranchised "ethical investors" were threatened, harassed, stalked and slandered when they attempted litigation to recover their losses.

In 2016 the land-share venture was expanded. Shareholder agreements joined the 640 acre Bhula Bhula property and the commercial precinct with the 3,000 acre estate owned by neighbour Peter van Lieshout in a larger venture renamed Mt Warning Eco Village. 

Exposed in local newspapers, blogs and social media by those who lost their life savings, defamation claims in NSW Supreme Court twice failed to win urgent injunctions for court orders to gag the publication of information that may alarm potential new "ethical investors"

The first injunction requesting a restraining order was withdrawn. The second injunction, joined by the company Nightcap Village Pty Ltd, complained of injurious falsehood published in blogs, but the requested gag was refused by Justice Lucy McCallum on grounds that the company was inchoate.

In the Court of Equity a claim to recover the properties was initiated. Charges of professional negligence have also been brought against Mullumbimby lawyer, Wroth Wall. 

Despite ongoing litigation by "ethical investors" who lost life-savings in the venture from 2015-17, sovereignty activists represented by Richard Moate at Nightcap Realty continue to sell "dwelling-sites" through a fledgling agency Nightcap Realty, with promises to newbies that restitution of the losses of previous "ethical investors," like the promised development approval, is "coming soon".

Brisbane Courier Mail, 2017

Harmony Shattered


The vision grows as newly fleeced asleeple with eyes wide shut stumble into the rabbit-hole, and discover why the Cheshire Cat is grinning!

From its inception in 2014-15, the land-share development was a life-style dream that became a living nightmare, as investors saw hopes and resources brutally ripped away. Broken relationships, trauma and heartbreak were all that was left for most after the nascent development was hijacked by a hidden agenda.

The original vision for an intentional community as a land-share venture was birthed in 2014 by Andrew Cody, who found the land and joined with Mark Darwin to raise finance to buy two properties at 3220-3222 Kyogle Rd, Mt Burrell, NSW. 

vision.jpg
Baiting with "alternative lifestyle" lures
What some investors didn’t know, was that unseen behind the curtain were other “sovereignty activists,” who had a hidden plan that only became fully evident after Mark Darwin disassociated from the Inner Circle.

The land-share venture was at first called Bhula Bhula Village Community. Investors who raised concerns about the failure of Mr X to transfer land title to control of investors, lack of accountability and apparent money laundering, were marginalised, demonised and driven off the properties they had paid for, without restitution of funds. 

Neighbours and local communities observed with growing concern as the conflict escalated until the sovereignty activists had forced all the investors off the land, occupying the property and seizing land title for themselves.

Then began a long quest for justice with blog-wars shaping public opinion and painful, costly court appearances, but
 it was the extreme malice, vicious threats, harassment and bullying that shocked the disenfranchised investors most.

It is evident that five years after a starry-eyed start to the imagined “Village Community,” the sovereignty activists are positioned to execute a phoenix move on June 19, to transfer control of the land asset to one of the companies in their network, and so divest liability to unwanted creditors. 


The marketing is new, but a cat’s meow is as old as the hills.


June 26, 2020

Nightcap on Minjungbal - A Communitarian Venture


The land-share venture began in 2014 with fundraising for an intentional community called Bhula Bhula Village CommunityTwo properties at 3220-3222 Kyogle Rd, Mt Burrell, were purchased in 2015-16 with funds held in trust by Mullumbimby lawyer, Wroth Wall - over $2 million. 

The finance was provided by a group of investors in response to marketing representations that they would be co-owners of the properties as members of an incorporated association.

The marketing promises were never fulfilled.

Campout 2015, meeting of investors who provided purchase money for Mt Burrell properties
Campout 2015, meeting of investors who provided purchase money for Mt Burrell properties

Investors provided over $2 million in 2014-16 for purchase of property
Investors provided over $2 million in 2014-16 for purchase of property

Title to the farmland at 3222 Kyogle Rd was retained by finance manager "Mr X". Because of protective Supreme Court injunctions he cannot be identified as the controller of the alleged land-share fraud.

In July 2015, Mr X appointed himself sole director and seized control of the venture with a single $1 shareholding in the company used to purchase the property.

Those investors who insisted on accountability and fulfilment of marketing representations were "rejected" and forced off the properties by Mr X, without right of reply or restitution of funds.

Sphinx Rock Cafe, 3220 Kyogle Rd, Mt Burrell

The community was divided between those who did not agree with the new direction, who wanted to leave, and "the boys at the back" who accepted the Sovereignty land grab and occupied the properties, ready to defy Council. They built dwellings without DA consent, only to be evicted in 2017, after Tweed Shire Council pressed claims in the Land and Environment Court.

Mr X continued marketing dwelling sites and refused to transfer co-ownership and control of the venture to investors, as promised.

In July 2017, he spun the company into liquidation after executing a mortgage over the property. 

Mr X invited British agitator Mark McMurtrie, who calls himself "Gunham Badi Jakamarra," to occupy the farmhouse as supposed "caretaker," bringing the Minjungbal Tribe with him.

In 2020, six years after the intentional community was conceived, new project managers stepped in line with Mr X, who, for three years, continued insolvent trading with the company in liquidation, as the property deteriorated.

Richard Moate and Max Igan are now Nightcap Village "Community Membersand the enthusiastic promotors who are still moving forward without DA compliance.

Project director, Mr X, together with British property "caretaker" Mark McMurtrie and British promotor Richard Moate, have been adopted by the Minjungbal Tribe as self-identified white Aborigines.

Promotors Richard Moate and Max Igan


Living Outside the Dialectic


A Communitarian Venture


The political construct of Communitarianism underlies the ethos of the Sovereignty land-share scheme at Mt Burrell. In Communitarian systems the rights of the individual are subordinate to the collective.

As presumed descendants of the original indigenous occupants of Australia, Sovereignty Activists aligned with the Minjungbal Tribe seized the land, evicting the purchase money creditors who paid for the properties. 

They justify the land-grab by appeal to higher communitarian precepts, based on their belief that Aborigines should be the rightful owners of all Australian territory.

The property at Mt Burrell in 2014, now occupied by Aborigines

Recommended Reading on Communitarianism


"Living Outside the Dialectic":  See Niki Raapana's blog and books on Communitarianism 

Seeking a Path Not Included in the Plan

2020: Our Common Destiny & the Anti Communitarian Manifesto 

Niki Raapana and Nordica Friedrich explore the history, philosophy, and modern-day implementation of Sustainable Development, Communitarian Law, and Community Policing. 

Niki Raapana's blog: https://nikiraapana.blogspot.com

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.






Featured Posts