10 Nov 2018

The Flight of the Phoenix

By Gi Linda-

In Australian courts, news reports and blogs, victims of "Nightcap Nightmare" are warning that sovereignty activists Mark Darwin and Adrian Brennock are selling home sites with idyllic views of Mt Warning on environmentally protected property without development approval.

Victims of Nightcap Nightmare warn that "Freemen" Darwin and Brennock scammed them of life savings, inheritances and much goodwill, making false promises muscled by contrived urgency to induce payment of money into a dubious land-share venture cloaked as a visionary initiative managed by credible and trustworthy professionals.

Under a functional legal system, such dishonest scamsters would be stopped, but Nightcap Nightmare has confronted justice for more than three years in four jurisdictions: the Supreme Court, Federal Court, Magistrates Court and the Land and Environment Court. As "Freemen" they expect the courts to bow to them.

During 2014-15, Adrian Brennock and Mark Darwin solicited “interest” from investors at public events and secured finance without adequate contractual procedure.
Potential investors attracted by online marketing, public presentations and private meetings with Mark Darwin, 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.

The required payment was $40,000 from mid 2014, then rose to $80,000 in February 2015 and increased to $120,000 by July 2015, with uncertain caps on the maximum number of intended participants.

During 2014-15, Investors provided $1,913,000 in purchase monies for Land, with additional loans and payments of superannuation. These purchase monies were not registered. Most were held on trust by “Community Lawyer” Wroth Wall, principal of Wall & Company Lawyers.

The purchase monies were made in expected exchange for co-proprietary interest in the property, through membership of a registered Incorporated Association that was intended to be legal owner of the Property.

Acceptance as a “Community Member” followed direct transfer of purchase money for the property, paid into one of Darwin’s several trust accounts and nominated for the purpose of “Formation of a Community”.

On May 8, 2015, the Association “Together in Harmony Incorporated,”  Registration Number: INC1500616 was registered with Fair Trading.

In June - August 2015 a video and a Legal Structure Diagram were supplied by Darwin to potential investors, including me. The video and the Legal Structure Diagram present an “unconventional” confusing legal structure that inserts an apparently unnecessary additional private Company as “trustee” of a supposed “trust fund” that appears intended to be owned by the Incorporated Association with transfer of a sole share by the purchasing Company to the Incorporated Association.

This convoluted legal structure was legitimized by trusted Community Lawyer Wroth Wall and Czech lawyer Michal Hajeck.

On June 22, 2015, the Company, Wollumbin Horizons Pty Ltd, was incorporated.

Two different “trust deeds” provided to Investors purport to establish a “trust fund” to be controlled by “Unit Holders”. Terms of the “deeds” provide prospective “Unit Holders” with membership in “Bhula Bhula Community Village” and supposed control of assets, but not co-ownership of the Property purchased with Investors’ funds, as had been promised.

On June 23, 2015, the second deed of trust purported to establish the “Bhula Bhula Community Village Trust” for the purpose of managing assets on behalf of its beneficiaries, while also enabling transfer of communal assets to private ownership.

The Company was appointed as “trustee” of the “Trust,” but the Trust Deed was not executed or registered.

Neither the Settlor of the Trust nor the Company Director signed the Trust Deed and no property or other asset was settled or intended to be settled in the Trust, apart from a prospective $20. “Bhula Bhula Community Village Trust” does not exist, except as a fictitious paper entity that was imposed to defeat promised co-ownership of the Property by Investors as members of the Incorporated Association.

On June 30, 2015, the Company entered into a contract to purchase the Property being Lot 20 in Deposited Plan 7557 14A and 7557 14B, and Lot 2 in Deposited Plan 1148316. The Property was purchased using $588,459 of Investors’ money, together with a mortgage of $550,000.

The Contract was authorised by “Community Lawyer” Wroth Wall with the purchaser being “Wollumbin Horizons Pty Ltd t/as Bhula Bhula Village Community Trust”. Bhula Bhula Village Community Trust” does not exist. On payment of the purchase price of $1,175,000 the Company became the registered owner of the Property.

Instead of transferring ownership of the Property to the registered Incorporated Association, providing purchase money Investors with promised shared proprietary rights to the Land, the private Company controlled by Brennock remained legal owner of the Property and the Company was designated as supposed “trustee” of the invalid “Trust”. The self-appointed Company Director issued to himself a single share in the Company of value $1, becoming sole owner and controller of the Company’s Land asset.

An “Application Form” attached to the improperly executed “Trust Deed” requesting a “Unit” in the fictitious “Bhula Bhula Community Village Trust” was signed by some who by renouncing their promised proprietary interest in the Land enabled the “unconventional” manoevre by Brennock and Darwin to substitute an invalid “Trust” for the promised Incorporated Association. Disenfranchised purchase money Investors, instead of becoming co-owners of the Property, instead received conditional inclusion as “Members” of a supposed “Community,” being holders of “units” in an invalid “Trust” owning nothing. 

Twenty one "contingent creditors" with a "just estimate" of claims amounting to zero or $1 were admitted for voting purposes only; not for any beneficial remuneration, however these ”Unit Holders" claim that a debt is owed to them by the Company t/as a non-existent “Village Community Trust,” acting as unregistered "trustee" of an unexecuted “Community Village Trust.”

Despite receiving assurances by the Administrator that liquidation would be in their best interest, disenfranchised “Unit Holders” who paid for the land are not recognised by the Administrator as authentic creditors of the Company, since their supposed "debts" of $0-1 arise from unregistered transactions with the dishonourable company Director that are unenforceable. Supposed debts to "Unit Holders" due to failure of these "unconscionable contracts" were therefore not incurred with the Company concerned.

The Administrator assured contingent creditors without valid claims on the Company that they would benefit from voluntary liquidation, in consequence the majority admitted for a debt of $0 voted for liquidation, expecting to get their money back from sale of an asset they do not own. 

The Administrator encouraged false expectations of favourable outcomes. He led "Unit Holders" in an improperly executed “Trust” with no legal relation to the Company, and no connection between their investment and the asset, to falsely believe they were legitimate creditors of the Company and would benefit from liquidation. The Administrator also accepted dishonourable director-related transactions without question, to the detriment of legitimate creditors. These "contingent creditors” voted in favour of liquidation, so their invalid majority outweighed the legitimate vote against liquidation.

A supposed "committee of inspection" of "contingent creditors" that voted to undermine the interests of authentic creditors subsequently made improper secrecy agreements with the Administrator.

In 2017, Darwin, Brennock and Phillip Dixon initiated a campaign of harassment, stalking defamation and intimidation of opponents, including a SLAPP action in Sydney Supreme Court,  Defamation List, with perjured claims, followed by a false injurious falsehood claim and two urgent interlocutory injunctions that failed.

The “Community Solicitor,” Wroth Wall, testifies regarding his participation in the venture in an affidavit Aug 2018. Prior to the purchase of the Property he received applications for “Units” from some potential investors," but he did not warn them of known land-use restrictions.

In light of the evident prohibition on rural land sharing communities on the designated Property, he advised that it was appropriate to obtain planning advice prior to contracting for purchase of the Property. His advice was rejected by Brennock and Darwin who instructed him to proceed with the purchase without comprehensive planning advice.

An “Incorporated Association” called “Living in Harmony” was supposed to provide Investors a proprietary interest in the Land, but was switched in June 2015 for a private company owned and controlled by Brennock, “Wollumbin Horizons Pty Ltd”.  A single share in the Company (WH), value $1, was issued to Brennock.
After completion of the Property purchase, the single $1 share in the Trusteee Company held by Brennock was not transferred to the Incorporated Association and none of the Units in the Trust were issued.

Neither Community Solicitor Wroth Wall nor Brennock nor Darwin informed Investors of the switch from an Incorporated Association to a private company owning the land. Nor did they explain the implications: that the land to be purchased would be owned and controlled by Brennock personally, and not jointly owned and controlled by investors, as offered.

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