Supreme Court Judge Upholds Due Process

NSW Supreme Court Judge Julia Lonergan made an unusual order on 21/2/2020, referring a claimant as eligible to receive pro bono assistance from both a barrister and a solicitor. 

The referral for legal help was granted in response to a request for procedural fairness by self-represented documentary filmmaker/journalist Gillian Norman (Gi Linda), who together with musical instrument maker Ron Berry, charges a Mullumbimby lawyer with professional negligence after loosing life-savings totalling $200,000. (Norman and Berry v Wall:  2019/001967/98)

Although individuals may prosecute charges in NSW Supreme Court without representation, they rarely succeed. The perception that impecunious victims of crime are unable to receive justice on the tilted stage of complex laws and procedures has caused public loss of confidence in Australia’s legal system, and the Supreme Court is now widely disparaged as a “Kangaroo Court” with a double-edged sword of injustice serving selective blindness in deference to dominant corporate interests. 

Justice Lonergan said her order requesting free legal help for the self-represented claimants was “in the interests of justice,” as she wanted to ensure a fair hearing. 

The matter in contest before the Supreme Court involves an alleged land-share scam at Mt Burrell, NSW.  During 2015-16, more than twenty investors paid $2.225 million to the trust account of lawyer Wrothwell Wall. The entrusted funds were intended for purchase of property, with shared use and co-ownership of land promised in exchange. 

After the land was purchased using investors’ funds, the promoter declared the project “a failure” and usurped private ownership and control of the property.

The defendant, Wrothwell Wall, principal of Wall and Company Lawyers, represented by Gilchrist Connell, says he cannot understand the claim and requests the charges be summarily dismissed as vexatious.

An interim order was also made by Judge Lonergan, suppressing distribution of an email filed as evidence, in which Mr Wall acknowledged service of the professional negligence claim, assuring his lawyers that all trust funds had been “returned” to “individuals or entities”. When Norman and Berry asked for proof of “return” of their funds, the defendant withdrew his email from the Court record, and is seeking a permanent suppression order. 

The professional negligence claim is listed for case management before NSW Supreme Court on April 17.  Norman and Berry request restitution, or the equitable remedy of specific performance with transfer of land title restoring rightful co-ownership of the property to those who paid for it.

Sphinx  Rock Cafe at Mt Burrell - part of the contested property

Professional Negligence Claim Against Mullumbimby Lawyer

Finance to buy land was raised during 2015-17 by the promoter of a land-sharing venture called “Bhula Bhula Village Community”. In exchange for funds, all investors were promised use of a 3-acre dwelling site with co-ownership of two properties on three land titles. 

The estate, located at 3220-3222 Kyogle Rd, Mt Burrell, NSW, includes the iconic Sphinx Rock Cafe, shops, servo, caravan park, with an adjoining 640 acre farm. 

But the life-style dream on offer became a nightmare for investors when their trust money was used by Wollumbin Horizons Pty Ltd to buy the 640 acre property. The company was controlled by Wrothwell Wall’s client, Adrian Brennock, the promoter of the land-share venture, who, before purchase, gave himself a single $1 shareholding and appointed himself sole director of the company owning land title. 

Promises to investors of co-proprietary rights were not fulfilled. Mr Brennock refused to register or transfer any interest in the land other than his own $1 share, then he ousted the disenfranchised investors who had paid for the property. 

Norman and Berry observe that not only is the promoter’s usurped control of the property a breach of trust under shadow of law, but when investors asked for fulfilment of marketing promises and accountability they were threatened, stalked, slandered and intimidated.

The claimants affirm that lawyer Wrothwell Wall owes them a professional duty of care, having received their funds in trust, but instead of care, as conveyancer of the property, he failed to warn of a hidden risk: according to zoning regulations, land-sharing on that property was not permitted. 

The claimants say the lawyer failed to ensure that their funds were used under direction for proper purpose; did not report breaches of trust; was unresponsive to complaints and refused to provide proper accounting.

Nightcap Village 

During 2016, the promoter of Bhula Bhula Village Community announced that the venture had “failed”. He evicted all investors from the property, falsely promising return of funds, then independently expanded the “failed” venture as a new project called “Nightcap Village”.  

In 2017, the contested property was linked by shareholder agreements with an adjacent 3,000 acre estate owned by Peter van Lieshout, and promoted as “the world’s largest holistic village”. Supposed communitarian ownership of the property was gifted to the aboriginal Minjungbal tribe.

Currently, “special offers” are advertised, soliciting up to $295,000 for “pre-DA dwelling-sites” with a “Minjungbal tribal certificate” giving “true owner consent to live on this land”. 

Alleged Phoenix Activity

Phoenixing, named after the mythical bird that revives from the flaming pyre of its own demise, involves the winding up of a company with prior transfer of assets to a related company, to avoid paying debts.

A mortgage and loan agreement executed on June 7, 2017, shows that the promoter of the land-share venture, Adrian Brennock, mortgaged the property at 3222 Kyogle Rd,              Mt Burrell, one month before attempting to wind up the company owning the land title. 

The mortgage agreement also grants a loan of $1,225,000 to Brennock’s associate Phillip Dixon as “vendor finance” with an undated contract of sale, signed by Brennock and Dixon, transferring property title to Nightcap Village. 

In June 2017, a statutory demand by Gillian Norman against the company Wollumbin Horizons was upheld in Qld Federal Court by Registrar Belcher, who ordered repayment of the debt within seven days: Norman v Wollumbin Horizons Pty Ltd. The judgement debt was not repaid as ordered, but Mr Brennock initiated voluntary administration of the company with Vincents’ liquidator Steven Staatz on July 4, 2017. 

Related Litigation

Besides the professional negligence claim, related aspects of the Mt Burrell land-share venture are currently under litigation in other Courts.

-- NSW Supreme Court - Defamation: a defamation claim by Adrian Brennock and Philip Dixon was begun in 2017 against Gillian Norman and Nimbin GoodTimes newspaper. Two attempted injunctions brought before Justice McCallum in 2017 by Brennock and Dixon failed to obtain orders for suppression of online blogs publishing imputations of fraud. 

A six-day hearing of the defamation claim ended in October 2019. Demands by Brennock and Dixon for orders that the blog be totally suppressed were not granted. An interim order restrains Ms Norman from republishing allegations of disreputable conduct by Brennock and Dixon. Justice Fagan reserves final judgement.

-- Qld Federal Court of Appeal: Gillian Norman and Ron Berry are claiming denial of due process in an appeal from a decision by Federal Court Judge Derrington, who appointed Vincents’ liquidator Steven Staatz as receiver of the disputed property in 2019. 

An application by Staaz for summary dismissal of the appeal is listed for hearing on March 5. The respondent is under orders not to dispose of the property.