Bill Fletcher spent half of yesterday doing all he could to avoid throwing Kate Barnet under a bus. Mostly he succeeded.
The former Bentley’s partner, who would normally be enjoying an enviable boomer retirement instead presented in the Federal Court for public examination by counsel for Mark Robinson, the Fort Restructuring principal who replaced Fletcher and former Bentleys’ colleague Barnet as liquidator of Octaviar Limited (OL) and Octaviar Administration Pty Ltd (OA) in 2023.
Robinson senses blood. Since the middle of last year he’s been wading through the disgorgements notices to produce induce, sieving a detritus of correspondence, file notes and counsel opinion, legal advice and other material for lapses his predecessors will lament and their insurers will regret.
That’s led him to commence public examinations though there’s a way still to go.
Much of yesterday’s questioning focussed on four issues.
How Bentleys corporate entities interact with their associated partnerships, the professional indemnity insurance policies in place, when Fletcher and Barnett formed their views as to the relevant dates of insolvency of OL and OA and the strategy to pursue unfair preference claims cooked up by Fletcher and Barnet’s lawyers at Henry Davis York (HDY).
The court heard that between their appointments in 2009 and 2015, Barnett was in charge of the day to day running of the administration.
She was the CEO. Fletcher was the chairman. He had the job of engaging with the Octaviar group’s fractious Committee of Inspection (COI), which included their referrer Will Colwell, who was also a partner at KPMG, against which preference and breach of duty claims were subsequently identified.
In fact as early as 2011 the liquidators had formulated unfair preference and antecedent transaction claims against multiple parties including Grant Samuel Corporate Finance, JP Morgan Chase Bank, Mirvac, the Commissioner of Taxation, Fortress, Freehills, 333 Capital as well as various Octaviar group entities were all potential targets.
But for reasons which are yet to be revealed, proceedings were not commenced within the required timelines.
Instead a strategy was devised to pursue a “blanket” extension to the limitations period for bringing claims.
There was apparently no advice from HDY about the potential use of standstill agreements to avoid the need for extension applications and the delays in bringing preference claims against many of the targets is central to Robinson’s focus.
And as questioning zeroed in on the strategy and what he knew about it and when, under the bus Barnet went. Fletcher could only indicate that many of the matters he was being asked about were handled by Barnet. At one point he said Barnet was “close” to HDY.
He’ll be hoping his former colleague isn’t too enthusiastic in returning the favour during her own examination, currently underway.
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Further reading:
Uninvited crash Octaviar’s ex-parte
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