Ark Capital VAs deny “improper purpose” allegation

According to documents filed in the NSW Supreme Court Neil Cussen and Tony Wright will be expecting a judge to find them without sin when their application for validation of their appointments as voluntary administrators (VA) of Ark Capital Partners (ACP) comes before the court later today.

With money short and the next Ark employee wages bill due on June 15, the Olvera Advisors pair were forced to seek validation after ACP co-founder and director Rahul Parrab objected to the manner in which some of his ACP board colleagues had resolved to place the company into administration on May 8.

Adding to the tension that imminent insolvent trading brings was a dispute about who would get the gig.

Certain directors – Darren Brusnahan, Mark Bullock, Sarah Townson and Michael Piro – liked Newpoint Advisory’s Costa Nicodemou for the gig and resolved to appoint him on May 5. Parrab was equally concerned about solvency but had misgivings about whether fear of insolvent trading was what was motivating his peers.

Certainly some of the directors wanted to hedge their bets. Three of the four voting in favour of administration expressed their votes as being conditional on no funding solution being conjured by 12:30pm on May 6. If after that deadline no new funding materialised the votes would convert to unconditional approval.

For those unfamiliar with ACP iNO observes the following. Half the company was purchased by Phil King’s ASX-listed Regal Partners in June last year; until April 2026 Regal’s Brendan O’Connor and Adrian Redlich were ACP directors; Regal wants the half of Ark it didn’t get last year and the only thing preventing Cussen and Wright from terminating ACP’s staff and recommending it be wound up is $350,000 Regal Hotels Partners Pty Ltd provided on May 14. And it wasn’t unsecured.

One day after the May 5 crisis meeting ACP directors met again. The opinion that the company was on the precipice of insolvency was shared by three of the five directors. Further it was resolved to seek a consent to act from Deloitte.

How Nicodemou fell so swiftly out of favour is not clear based on the information iNO’s obtained and Nicodemou didn’t respond to a request for comment.

What is clear from Cussen and Wright’s DIRRI is that following a conversation with Deloitte’s Phil Robinson on May 7 Cussen was made aware that his former partnership had a conflict.

The way was clear for he and Wright to consent and on May 8 Cussen presented via teleconference to ACP’s directors, who by this time had a week to make payroll.

Following the teleconference the ACP directors held further meetings. Whilst agreeing the situation was urgent Parrab was still concerned about procedure and governance in respect of the VA appointment process.

Regardless a series of circulating resolutions were made purportedly in accordance with ACP’s constitution allowing for the appointment of administrators by a majority of directors. Shortly after making those resolutions Brusnahan and Townson resigned.

At a subsequent meeting with the remaining directors Cussen learned that Parrab – who by this time had engaged Cor Cordis partner Rahul Goyal to advise him – was concerned that the administration process was being used for an ulterior purpose. Given Regal had made an offer for elements of ACP on May 8 and for further assets on May 13 who could blame him.

That concern hardened to the point where on May 20 Cussen received a letter from Baker McKenzie acting for Parrab.

The letter made various allegations regarding the conduct of Regal and Cussen and Wright, alleging that the administration process was being abused to allow Regal to swallow the remainder of ACP.

Cussen and Wright strenuously deny the allegations and following recent developments it’s uncertain if they’ll be pressed this afternoon when lawyers for the Olvera pair appear before Justice Ashley Black.

iNO’s mail is that Parrab has in the past few days traded his resistance and his ACP shares for a fat cheque and his signature on a non-disclosure agreement.

In response to iNO’s inquiries Cussen said he would wait until the judge had delivered his ruling.