Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.
Background
Benjamin Fry was admitted to the bar in 2019. He claims to specialise in, amongst other areas of law, “recovery actions and voidable transaction claims in bankruptcy [and] public examinations”)[1].
I was bankrupted by man X and man Y on 3 August 2018. Man X and man Y were two men who had started and then operated a quarry that was less than 175m from our home, and which I fought due to fact that they intended to steal our water, pollute other water, pollute the air quality, and generally made our lives hell (and they did all that and more); additionally, they told prolific lies to the community, and to the authorities. They even lied to the tribunal and courts (they even lied under oath a number of times, and they committed blatant and deliberate fraud).
Anthony Cant (Tony) of Romanis Cant was specifically chosen by man X and man Y to be my bankruptcy trustee. My bankruptcy term ended on 31 August 2021, with no objection, no finding of anything amiss, no property held by Tony, and no offence found or even suspected.
Tony could have, but failed to, explain why he did not examine me during my bankruptcy period about issues that were subsequently raised. He had noted in documents that he had the responsibility to do such examinations, and he claimed that he had indeed done such investigations. In fact, Fry told the court that Tony should have done the investigations (thereby telling the court that Tony had been inept). Fry merely took over for Tony in the court action Tony brought (under the guidance of Fry), but still ignored the fact that the so-called “examination” did not take place nearly 6 years earlier when we might have had a better chance of remembering things.
On 23 November 2023, at the provable instigation and under the specific instructions of man X and man Y (over 2 years after Tony had discharged me from bankruptcy), he commenced action. In July 2024 (just one month before the time ran out), Tony then sold the rights to take the action against us to man X and man Y, and man X and man Y commenced action themselves. It is to be assumed that it was man X and man Y who instructed Tony to use Fry, so that the transition from Tony to man X and man Y would be more seamless.
Fry is seeking that the court take certain actions but without providing proper justification. My analogy is that it’s like asking a policeman to make an arrest but not saying why.
Note: (1) man Y died in March 2024 and his role in replacing Tony as trustee was taken over by Susan Elizabeth Curnow, man Y’s widow and claiming to be his executrix, (2) man X and Susan are mega-millionaires, for example selling one of their businesses in February 2024 for approximately $70m (that is about $35m each), and (3) they are coming after my husband John for a false claim worth only “pennies” and, under Fry’s guidance, advice and assistance, are demanding an illegal windfall.
Calling us liars
Fry even indicated to John that he didn’t expect John to remember everything: “I can fairly let you know that if I’m asking you about things that happened 20 years ago, I’m certainly not expecting your memory of precisely when you were working to be accurate …[2]”. And yet, because we couldn’t remember some of the things that happened so many years ago, Fry then continued to try to use it against us by casting doubt upon our integrity. For example (and this is only one of the many times he tried to grind answers out when there was nothing to hide and hard to remember): “I’m not sure I quite understood that answer, sir. Do you have an actual recollection of attending …. Can you positively say you didn’t … Sir, your answers seem to me to be a series of hypotheticals: what might have happened if certain events happened….[3]”
John had creditor rights above man X and man Y
The reality is that, firstly, my husband, John, took measures (that I agreed with) to protect himself from losing anything more by what I was doing in standing up to man X and man Y and continuing to call them to account for their appalling conduct. Secondly, because John was (and is) a secured creditor, any available money from my bankrupt estate would have gone to John first anyway, as acknowledged by Fry [emphasis added]: “And the effect of this security … means that [her] interest in the … Bairnsdale property would not have been available to [man X or man Y] because you [John] had an interest in priority to theirs[4]” (and Fry totally ignored the fact that I had handed over that property to Tony and that it had been sold for a loss and John had been forced by the bank to bear that loss due to it being cross-collateralised with John’s own properties).
Fry did identify that each of the properties were actually co-owned, meaning that only half was related to John [emphasis added]: “In the context of a long history of co-owned property, [John’s] dealings with that co-ownedproperty and proceeds from that co-owned property …”[5]”, and “That was a threat to your assets, wasn’t it, to the extent that they were co-owned?”[6] Then, totally ignoring John’s half ownership, and John’s ongoing claims to that ownership, he then went on to grill John about it,[7] and Fry went on to try to claim the entirety of the enhanced values of the properties (enhanced by John’s hard work in paying off the loans and enhancing each property). And he continues to ignore what he clearly knows to be true that John has rights ahead of man X and man Y.
Examination or interrogation?
The matters were not complex. It is inappropriate to accept Fry’s submissions on Tony’s behalf that there were further matters requiring examination – Tony had had more than sufficient opportunity to explore the issues during my bankruptcy, and no matters had evolved since then. In fact, Tony claimed to have done investigations into the property issues, had asked for and received information from the bank and thereby discovered that there were no undervalued transactions or attempts to defeat creditors, and he had received legal advice on the issues.
It was therefore presumably on Fry’s advice that Tony commenced action in 2023, almost 3 years after I had been discharged from bankruptcy. My husband, John, and I were summonsed to court for “examination”, purportedly in relation to my former “examinable affairs”. So, in spite of Tony having performed a number of thorough investigations (and receiving legal advice), and finding nothing wrong, man X and man Y, through Tony, used Fry as his barrister in relation to my former bankruptcy.
Fry’s interrogations of us commenced on 8 May 2024. This hearing had been brought about under the false guise of having us just provide answers about what documents we had managed to find and which ones we could not find, as the case may be – the court order stated that [emphasis added] “Each of the Examinees is to appear via the Microsoft Teams platform at the return of the summonses on 8 May 2024 for document production”. However, it soon turned into serious interrogations, with each of us being sworn in, not allowed to hear each other’s answers, and everything being kept secret – this became the first day of the interrogations. We were absolutely shocked because that was not what we had been led to believe would happen.
During Fry’s interrogation of me on the second day of “examinations” (22 May 2024), he made certain assertions about a past case between man X, man Y and me, and when I said that the negative result of that particular action was due to man X and man Y’s barrister (Anthony Southall) lying to the court, Fry evidenced shock and horror that I would call out a barrister on his lies: “You understand that accusing a barrister of lying is quite a serious thing?” Small wonder he was appalled: he was possibly worried that I would call him out with any of his own claims that prove false – and I am indeed calling him out, and will continue to call him out for as long as his charade continues and he does not concede or admit to his falsities.
Hiding information (including hiding the truth)
Tony, and presumably Fry acting on his behalf, had ensured that the affidavit Tony swore that was behind the action commenced in November 2023 was confidential so that we could not know what they actually had planned and what Tony had accused us of. Fry noted in submissions that Tony had to give details of any inquiry Tony had previously made about the documents to be produced for the summons – i.e. documents that Tony had to have asked for during my bankruptcy, and that he was stating that I had refused to supply. The fact of the matter was that there had been no inquiries that had not been answered, and there had not been any refusals to provide any information. Tony had never made any such accusation or charge about either, and he had discharged me from bankruptcy without objection. It is also critical to note that, when he forced us into “examinations”, Fry did not interrogate either of us on any information that was purportedly not provided, nor of any purported failure to cooperate, and the reason he did not interrogate us on this is because both lines of enquiry would have been baseless and would have gone against him.
As mentioned above, Tony forced my husband and me into what he called “examinations” but which were really horrible and invasive interrogations run by Fry. These were held 2 months after man Y had died, and yet we were still not told of his demise – the dishonest inferences were that man Y was still alive and well.
Fry interrogated us on matters that had nothing to do with my bankruptcy, had no real factual basis, and were twisting reality to suit whatever Fry wanted to try to put to us. He hid the truth while making unfounded accusations and pounded us in an effort of trying to grind us into making statements that were simply not true – he got very forceful when we would not cave in when he wanted us to “admit to” things that were false.
At the end of the interrogations, Fry demanded, and the court ordered, that each of us sign copies of our own transcripts of the interrogations and return them so that Fry could have them to try to use against us if required. The orders handed down at the end of each of our interrogations were that Tony had 6 months in which to do further interrogations if required, and we were still not allowed to read the transcripts of each other’s interrogations, and were not allowed to discuss any of the questions asked or the answers given.How difficult, living in the same house, to be barred from being in any way open with each other, or to the able to share pain or anxiety other than in the very vaguest of terms. Divide and conquer was obviously their aim.
Now, of course, Fry is acting for man X and man Y’s widow, Susan Curnow, and is using the transcripts against us, even though there was nothing the he asked or we answered that gave him any rights to do so. In fact, as seen in this webpage, he has twisted facts at will, and his action for man X and Susan Curnow is a clear example of that.
Money had been paid to man X and man Y that Fry is insinuating has not been paid. Perhaps man X and Susan Curnow have lied and said that the money had not been paid, but, whether or not that is so, Fry personally knows what has been paid because he has the proof in the documents he had available for the interrogations (but chose not to use them – surprise, surprise), and he is using this falsity in an effort to try to give his false claims some legs.
The time limit for further examinations has passed, so Tony is well and truly out of the loop – other than I have a number of organisations investigating him.
Abuse of process
In his submissions on behalf of Tony dated 19 March 2024, Fry told the court as absolute fact that “For an abuse of process to be established, the improper purpose must be the predominant purpose”.
He then went on to give several examples of improper purposes in clause 15:
“(a) examinations directed solely at destroying the credit of a witness”. I contend that the majority of Fry’s focus in interrogating us, and certainly in the statement of claim for the new case, there certainly appears to be an intention to destroy our credit (many of the claims are actually defamatory of each of us).
“(b) examinations that are a dress rehearsal for cross-examination”. I contend that the earlier “examination” was clearly a “dress rehearsal” for this new action.
“(c) examinations conducted for the benefit of someone other than the applicant Trustee” . I contend that, although supposed to be done on behalf of Tony, it was clearly and unequivocally for the sole benefit of man X and Susan Curnow, and this is further proved by the fact that they had “bought” the rights to the action.
“(d) examinations conducted for the predominant purpose of extracting an offer of settlement, rather than any investigation into the relevant “examinable affairs”. I contend that the applications and statements of claim appear to be an attempt at extortion (the demand to hand over goods worth in excess of $1m – all of which John has paid for out of his own money) and provide a “lesser” cost opportunity: “Further, or alternatively, an order directing the first respondent and second respondent to pay damages and/or equitable compensation to the applicants[8]”.
I contend that the “examination” itself, and this new case where Fry is acting for man X and Susan Curnow, reveal clear and unequivocal examples of improper purposes based on Fry’s own definitions. Therefore, for all the aforesaid reasons, the predominant purpose absolutely proves to me to be a clear abuse of process.
According to Fry, no trustee (and therefore that included Tony) was allowed to take action for examination with a view to punishing a bankrupt or former bankrupt, yet that was the exact result of Fry’s interrogation. Tony subsequently sold the rights to take action to man X and man Y (in spite of the fact that man Y had died months before Tony signed the documents for assignment!!) Tony sold the action by way of a signed Deed of Assignment to man X, and the deceased man Y by way of Susan Curnow, his widow. The new case is also being run by Fry and, based my opinion of and observations of Fry’s conduct and the words he used in the new documents he prepared, he does indeed intend to utilise the previous interrogation process as a dress rehearsal for cross-examination in the further proceeding (he prepared the foundational court documents). Man X and Susan Curnow, as man Y’s executrix and widow on man Y’s behalf, are taking action against John after they bought (and presumably paid for) the action from Tony for a measly sum of $22,905.06[9]. This was therefore yet another example of Fry making the “examinations” an improper purpose and therefore, another abuse of process! From my observations, the truth has not appeared to have mattered to him so far (he appears to me to go by Mark Twain’s old adage: “Never let the truth get in the way of a good story”). We are being punished for having done nothing wrong, and Fry certainly appears to be enjoying himself trying to make out that we have done something wrong!
So, there is indeed a new case, brought by man X and Susan Curnow, and which action is a farce. Tony sold his right to take action (if any actions could have been taken).
Fry was applying undue pressure on both of us in relation to the interrogations generally, and it certainly appeared that he was planning on utilising the interrogations as a dress rehearsal for an intended cross-examination of us both in a future proceeding – making it an abuse of process.
Contempt of court
Tony had committed contempt of court by not serving us with the summons (directed by the court to be served on us) back in 2023, meaning not only did we miss a hearing on 5 February 2024, we actually had no idea that any action had even commenced. Fry was presumably behind the creation of the application and affidavit and what I assume are the lies within them. I believe Fry made it clear that Tony’s contempt of court was intentional because he said in the submissions [emphasis added] “Rule 6.07 reflects the usual practice that a bankruptcy trustee’s application to issue an examination summons is made ex-parte” – meaning that (I allege) the first hearing was deliberately held without us so that we could not know what they were planning against us so, if my conjecture is correct, that would make it an intentional contempt of court. I call this conduct underhanded and sneaky because the court had most certainly expected John and me to attend. I wonder if Tony did this on Fry’s instructions.
Supposedly undervalued property
One possible opportunity for a “win” in Tony’s application could have been in relation to transfers of land where John and I had had a property settlement in 2016 and John took ownership of all the properties but one – he also took all the debts for each of those properties. The fact is that, rather than John having gained substantially (or at all) by the property transfers, he actually ended up with a total significant loss when the property values were compared to the mortgages at the time of transfer – therefore, Tony couldn’t claim any profits from the properties. Additionally, at the time of transfer, all debts to those claiming to be unsecured creditors had been paid. Fry didn’t try to make much of an issue with me over the fact that transfers had been equitable (or in fact to John’s disadvantage). He tried to push his point with John by emphasising that John had not paid me for the transferred land, but failed to note that if financial considerations were included, I would have had to pay John for taking over debt-laden properties.
Further, he not only failed on making a point of undervalued transactions, but even if Fry had taken action on behalf of Tony, and could somehow manipulate the figures to present a gain, John would have received that money back given that he was the secured creditor.
So, we had Fry leading the charge to try to take the values of property (that had been in the negative when taken over by John) and use today’s 2024 value (over 8 years later), where the property values had been significantly increased by natural increase in prices in addition to John (a) paying the loans out, (b) doing serious renovations and developments (including subdivisions and realignment of boundaries), and thereby increasing the value of each property by his own exertion. In the first instance, on behalf of Tony, and now on behalf of man X and now Susan Curnow, Fry wants the entirety (not just the half that would have been mine if the properties had not been transferred), not only of the underlying value at the time of transfer, but the value increased by John’s payments, and the increased value that has come about by John’s own hard work and financial input. Further, Fry is including John’s own full share (if the transfers were able to be undone), that increased value (although man X & Susan have alternatively suggested they might be willing to only take half), and then they also want costs for taking the completely unfounded action, together with interest. They have no right to any of the property values, no right to any increased value, they have no right to any percentage of it, they have no right to any interest, and they have no right to be taking this action. Fry is actively working with them to take most of John’s assets (all his major ones) – this is regardless and the fact that Fry would be entirely aware that having such a windfall is illegal. The fact is that if, and only if, the court believes that John should have paid a consideration for taking on the properties (being the difference between the mortgages and the property values at the time of transfer), he should only pay half of any consideration given that he had already been a half owner of each of the properties at the time of transfer.
Fry repeatedly claimed that the properties John had taken over from me were undervalued – it is to be noted that ifFry had done any research to discover if what he was propounding as the truth was actually true, he did not reveal it!!
Accusations of attempting to defeat creditors
Another issue that Fry sought to pursue related to interrogations claiming that we deliberately attempted to defeat creditors. Since we had made no such attempts, there was nothing to worry about in that regard. Having said that, Fry went to town on each of us in relation to trying to get us to admit a lie: that we tried to defeat creditors (being man X and man Y).
Fry put himself in the box seat of running the show, but it is my understanding that, as a matter of law, he would have to disprove our accounts if he wanted to take it further, and he would have to disprove it beyond reasonable doubt. The reality is that we had no intent to deceive, and his claim would have to be that we deliberately tried to defeat man X and man Y.
Presenting lies as fact
Fry claimed in submissions he prepared on Tony’s behalf that [emphasis added] “The predominant and onlypurpose here, evident on the face of each of the Examination Summonses, is an enquiry directed at identifying real and other property owned as between the Examinees, the arrangements between the Examinees concerning the use of that property, and the extent to which any property has been sold or converted”. But, entirely counter to that, Fry also claimed that “A number of [Tony’s] duties relate to the discovery and realisation of the assets of the bankrupt estate. The examination procedure is designed to establish what assets the bankrupt had, what has happened to those assets, and whether action should be begun (or continued) to recover them…”. So, here we have Fry clearly saying that “the predominant and only purpose” of the examinations was to simply identify what had been done, then he admitted the truth when he just as clearly countered with the fact that the real intention was actually to try to get access to properties that had been dealt with properly (as found by Tony and his legal team’s thorough investigations over the 3 years of my bankruptcy). It is apparent to me that man X and man Y wanted those properties clawed back and that Tony had to do what they demanded because they paid him to do so. Having summoned us to court, Fry purportedly “examined” both John and me in relation to matters that had already been thoroughly investigated over the 3-year bankruptcy period, and in which we had not been found wanting. I say Fry “examined” us because that is what it was referred to as; but seemed to us to be, in reality, an extremely in-depth and, at times, very nasty and intense interrogation, going way beyond the previously claimed “predominant andonly purpose” of the summons. The interrogations certainly also felt very threatening and bullying, and it is my opinion that he was trying to destroy our characters by effectively calling us liars – he said such things (without any proof) as “that’s just not true”[10] in response to truthful testimony. He has continued this conduct by defaming us in the statement of claim he prepared for the new court case.
Fry’s interrogations were misleading and meant to elicit responses that were damaging to us – this is in spite of the very suppositions behind the interrogations being false, to say the least. One such example is where Fry examined John, accusing him of having ulterior motives and an evil purpose for having a Lien on my car: “And would you also agree with me that, taking this document on its face, assuming it’s enforceable, that the practical effect of it is that [her] car would not be available to satisfy the judgment which she owed to [man X and man Y]? Because you would have an interest in the car, which ranked ahead of their interest?” Fry knew, or should have known (given that he claims significant experience in handling bankruptcy cases) that the value of my car was far less than the value allowed to be retained by a bankrupt, making my car unavailable to man X and man Y under any circumstances, and also proving that John’s Lien was absolutely meaningless to other creditors!! If Fry really believed that Tony should have taken the car, he should have told him to do so and Tony would have done so during my bankruptcy. And then there are the accusations that property was bought and sold and money moved around in order to avoid paying man X and man Y when, in fact, they had been paid all monies deemed owing to them at the time. In fact, Fry has continued to assert by inference that no money had been paid when it had all been paid (and he knew it) – the only outstanding amounts were the ones they used to force me into bankruptcy 2 years later.
Further, he swung with the breeze as best suited him at any given time – evidenced when he suggested that “You’ve got joint property. If you wanted to separate the property, you would agree with me, you could have divided it up”[11] yet, because we had done just that, he tried, and is still trying, to have a finding made that by doing so we were trying to defeat the creditors – damned if we do and damned if we don’t!! To me, Fry’s attitude is plain irrational.
Fry makes some, what I consider to be, further irrational comments and assertions. For example, he would have already been aware that the one property I had retained had been surrendered to Tony as trustee (and thereby making it available to man X and man Y as creditors) – and that it had been sold under Tony’s supervision (for a loss). Fry nonetheless made the accusations to John, that by John taking security for his loan on that property, he was robbing man X and man Y of the opportunity to have the property vest in Tony, for distribution between the creditors (of which John was the highest ranking)[12]. Fry strongly implied that, even though a secured creditor, and in spite of the fact that the loan to him was much larger than that due to man X and man Y, John had absolutely no right to take out security on the property, or to secure his debts at all. Further, Fry knew that the property had, in fact sold, under Tony’s supervision, for a loss in the amount of $12,400 and that John, rather than getting any money from the sale, actually had to absorb that loss because that property had been cross-collateralised with 2 of his own:there was nothing that could have been used to provide any money to man X and man Y regardless, and Tony would have made Fry fully aware of this fact before Fry he made the unfounded, false, and misleading, and what seems to me to be totally irrational and nasty, accusations.
During the interrogations, and also in the new statement of claim, Fry falsely asserted that I had travelled to a seminar that was run by a person doing what Fry termed as “using trust structures to protect a person’s assets from their creditors”[13] I had previously testified under oath 2 months earlier that my attendance at that particular conference was solely in relation to property (how to get the best out of it, how to maximise your chances of benefits by subdivisions and renovations, etc) and that there had been a number of presenters, 2 others of whose courses I also signed up for.[14] Going back through my correspondence now, I have found an email with the subject heading [emphasis added]: “August Zadel Property Entrepreneur News”. There is no excuse for Fry’s misrepresentations in the statement of claim because he knew the truth that I was attending to learn about property, not to learn how to defeat creditors! Further, I found the relevant brochure that stated [emphasis added]: “Six Of Australia’s ‘Richest’ Property And Finance Experts Over Two Momentous Days Are About To Reveal To You And A Friend, Everything You Need To Get Started Making An Obscene Amount Of Money In 2015.” Specific identification of the information to be given at the seminar by the presenter to whom Fry took exception was: “Taking action Is the first step. [She] compares the results of those who over-think to those who take imperfect action. Are you one of those people who spends too much time thinking, that you miss the chance to act?” So, as testified to in my “examination”, when I attended the conference, I clearly had no idea that her presentation was about anything other than property investment.
I have provided just a few of the many examples of what I see as Fry’s manipulation of the truth. Based on my observations and personal experience, it is my opinion that Fry’s conduct was grossly dishonest, and outright appalling. Frankly, it is my further personal opinion that he belongs in the same basket as my comments on barrister Anthony Southall QC (now KC) when it comes to his level of integrity and ethics (see the various pages on Southall and what he did!)
Fry effectively called both of us liars when all we did was tell the truth, and there was no evidence to the contrary (in fact, there was significant proof of both of us telling the truth). So, apparently in Fry’s mind, we are liars because we told the truth – the truth being any testimony that Fry did not want to hear. The long and short of it is that Fry also told the court as absolute fact that examples of improper purposes included trying to destroy someone’s credit, yet the majority of Fry’s focus in interrogating us certainly appeared to be an intention to destroy our credit – thereby making it another improper purpose and therefore, a further abuse of process.
It appears to me that Fry had a very short memory or a memory disorder, and couldn’t remember what he asked John or me and what either of us answered because he asked the same questions again and again and again; it was like a record that was stuck. The other alternative was that he was using the appalling interrogation tactics of continuing to ask the same question again and again in order to try to wear us down in order to try to make us agree to his false statements so that he would stop what appeared to us to be his bullying and harassment. It didn’t matter that we couldn’t remember, or told him that it was too long ago to remember, or that what he was putting forward as the truth was not true, he continued to assert his false claims again and again and again, by repeatedly asking the same questions on repeated occasions.
Another thing Fry did was to try to mislead us by using selective financial records when other records revealed the truth that countered what I concluded were his misleading allegations.
As an officer of the court, he is not allowed to lie or deceive, and yet, that certainly seemed to me to be what he was doing, and it certainly seems to be that he has continued to do so.
The Bankruptcy Act states in section 81(13) that “Where a person admits on examination under this section that there is in the possession of the person property of the relevant person that is divisible among creditors, the Court, the Registrar or the magistrate, as the case requires, may, on the application of the trustee or a creditor, order the first-mentioned person to deliver the property to the trustee within a specified period, in a specified manner and on specified terms.” There are 2 very important things to note here: (1) no such admissions were made because there was no property that was divisible, and (2) although Tony has belatedly tried to say that there is now property that is divisible (because Fry, man X and Susan Curnow apparently told him to say that), Fry did not advise Tony to demand that the properties be handed over at all, let alone in a specified time-frame – which I contend puts their entire claim in the false claim department.
Claiming an illegal windfall for his clients
As a self-claimed insolvency and bankruptcy specialist barrister, Fry would have known that, in order to make a case for undervalued transactions, the law states that any assessment of a property transfer being undervalued has to be made at the time of transfer, i.e. in May 2016. Tony had done forensic accounting and found nothing that could be clawed back, but, clearly, either Fry had not had any such evaluation done or he ignored Tony’s evaluations.
The question I have to ask is why did John have to object by pointing out that the value, according to law, has to be taken at the time of transfer [emphasis added]: “I’m objecting to that. Isn’t it relevant what the property was worth at a point in transfer? Registrar, I have spent my time and my money building a large shed, and if you want to look on Google Earth, you will – before and after, you will see the large shed. I have improved that property by my labour and my expense. So, again, I object to questioning what’s its now worth. I’ve improved it…. I’m not sure what the phrase is but – and I’m just going to take an example: if I spend one dollar buying a Tattslotto ticket and I win $1 million, that’s a really good investment of $1. But what on earth has that got to do with [her] bankruptcy? I have invested time and money improving a property so what it’s worth now I would say is irrelevant, to use that phrase. What was its worth at the time of transfer? How was it purchase funded? I understand they’re relevant but my opinion is Mr Fry is delving into stuff that’s about – of personal interest to me and my funding and this case is not about how, since the bankruptcy, I have tried to recover from the impact. I think it’s inappropriate for him to pursue that. … Can I make a comment though, please? … That if, based on Mr Fry’s last response, if using the word “traceability”, there’s traceability of funds to the property, the increase in value you trace to that property but the increase in the value as a result of my investment I think has no relevance. That’s my opinion.’[15]
Then, Fry identifies improper questioning: “There’s two ways in which my questions could be improper. The first of those: they could be irrelevant and that means irrelevant to the examinal affairs as that term is defined in the Act. The second way in which the questions could be improper is if I’m asking about an event that has occurred after bankruptcy which is not connected, in the relevant sense, to the administration of the bankruptcy.”[16] Fry ignored the facts and misled the court into believing that the improvements done and paid for by John were part of my “examinable affairs” and, as a result of Fry’s mis-categorisations and misstatements, John was overridden by those supposed to be upholding the law.
Fry acknowledged that the properties that he claimed were undervalued had been in fact co-owned, meaning that half was absolutely related to John’s outright and undisputable ownership [emphasis added]: “In the context of a long history of co-owned property, [John’s] dealings with that co-owned property and proceeds from that co-ownedproperty …[17]. … Here, core questions in issue are the circumstances in which various security and other documents were executed to the benefit of [John], where transfers of land were executed, that conferred, effectively, by way of gifts to him, interest in properties. All of that occurred within the relevant period. Those properties have since been sold and the connection here is the use of the proceeds because if those transactions were either ineffective or susceptible to avoidance, then the use of the proceeds will all come back to the administration of the bankruptcy.”[18]
Accusing his own client of improper actions
Even Fry’s own clients are not necessarily safe: Fry inferred to the court that, by not having done examinations during the term of my bankruptcy, Tony was inept and had not performed his duty property when he should have.
Denial of our rights
John was a secured creditor due to having loaned me a very large sum of money over time (the loans were to allow me to pay man X and man Y’s costs of proceedings they had won by their falsehoods (including by lying under oath and committing fraud)). Fry tried to get me to say that John did not loan me money at all, thereby trying hard by implication to cancel John’s secured creditor rights and status, and he tried the same ploy with John. Implications were made, but Fry (presumably deliberately) avoided explicit claims that John was not a secured creditor. The fact is that John did absolutely loan me the money, otherwise I would have gone bankrupt much earlier.
Fry continually and strongly implied that, even though John was a secured creditor, and in spite of the fact that the loan to him was much larger than that due to man X and man Y, John had absolutely no right to take out security on any property, or to secure his debts at all.
It was also an absolute issue to Fry that we had relied on the advice of professionals – it would appear that he believes that we should have obtained a second opinion in each case. I bet he hasn’t insisted that Tony, or man X and/or Susan obtain another opinion rather than just trusting Fry!! One rule for him and one for us!!
Fry then went on to demand answers as to how John spent the money created by his own personal exertion, even though it had absolutely nothing to do with any matter (given that the only, and I repeat, only, proper issue was the property equity at the time of transfer)[19] [20].
And, in spite of being aware that it was irrelevant to know what had happened to any money if there had been no equity at the time of transfer, and that at least half of any proceeds (if the transfers were to be undone) were John’s (and, if they could not be undone, the entirety was John’s), Fry sought to know where almost every cent went.[21]
Fry’s confusion
Among the many various other negative issues (detailed in various places throughout this webpage), it appeared to me that Fry gets confused between examinees and examiners. For example, he was the examiner, yet referred to both John and I alternatively as examinees and examiners: [emphasis added] “Obviously, Registrar, there’s two examinees. These examinations are listed for two days. I expect I will be the better part of a day with each examinerwith the intention of conducting the examination…”[22]
Advising man X and man Y (and Susan) to go for an assignment of Tony’s rights
It appears to me that man X and man Y (on the advice of Fry?) deliberately waited until I had been discharged for over 18 months before funding selected and specific investigations into issues they particularly wanted to have investigated. Is this just a supposition on my behalf that the issues that were being identified were identified by man X and man Y rather than legitimate investigation initiated by Tony? No, Tony explicitly stated in a communication that he was “… discussing the matter with [man X and man Y] as to which specific matters they wish to fund for investigations …” [emphasis mine]. What has this got to do with Fry? It is my belief that man X and Man Y used Fry to try to destroy us financially and reputationally. Why, you ask? Because I allege that man X and man Y wanted him to do so, and that Fry was only too happy to oblige.
To me, this looks like the old saying that he who pays the fiddler calls the tune. You can decide if that is true, but it appears to me that Tony had to do what man X and man Y demanded, even to investigating matters that were entirely unrelated to my former bankruptcy, but the knowledge of which would benefit man X and man Y, and only man X and man Y, and he used Fry to do it. This is particularly so given the fact that man X and man Y sought information in relation to a previous court case where they took me to court for revealing the truth about them – this was an issue to them and the court case had absolutely nothing to do with my bankruptcy, but had everything to do with information they wanted to gather for their own reasons. On behalf of man X and man Y, Tony demanded that I supply the material, including information and documents subject to confidentiality and privilege. However, sadly for man X and man Y, I couldn’t find the information.
Inferences as to Tony’s purposes can be drawn from the fact that man X and man Y were paying Tony (and hence Fry) to take action, with man X and man Y dictating the specific terms of investigation. Further, during the term of my former bankruptcy, Tony claimed that he had done very specific investigations and chose not to take action earlier; if he really believed it was appropriate to have taken action (and he had provided documentation stating that if he had found anything amiss he had the “responsibility” to take action against me), he should have done so back then.
Fry acted for Tony, and is now acting for man X and Susan Curnow, and his statement of claim is ludicrous, misleading and grossly deceptive – nothing new, it appears.
Fry recently prepared a statement of claim (and a subsequent amended statement of claim) against John (interestingly, not against me) that contains much in the way of falsity, untrue illusions, and misleading and deceptive claims; and the truth has been (in my opinion) deliberately, blatantly and very conveniently, ignored. Fry was placed in a position of having to redo their statement of claim because it was so ridiculous, but he did not change any of their actual claims – the only changes were not significant and were only tidying up their claim with correct lodgement numbers and such (although they still retained a number of inaccurate addresses for example). However, there was still no identification of any amount they wanted (they were claiming John’s assets totalling in excess of $1m) when they actually have no right to any of his assets; they still want John’s share as well as what had been my share; and they still wanted an illegal windfall. They have not stated what the “compensation” or “amount” they were demanding or on what basis they were demanding it, or any details other than the fact that they wanted pretty well everything John had (remembering that John had never been bankrupted and was in fact a secured creditor with rights surpassing those of man X and Susan Curnow). Both the statement of claim and the amended statement of claim clearly stated that they were prepared by Benjamin Fry. I can only suspect, therefore, that he was still proud of what he has done and how he was trying to get everything, including the benefits of John’s loan investments and hard work in renovations and sub-divisions, all of which had absolutely nothing at all to do with the state of affairs at the time of transfer 8 years earlier.
I had contacted man X and man Y’s solicitor, Green, back in March (prior to man Y’s death) to see what could be done to resolve the issues and was soundly ignored at the time, and since. Having chosen to ignore my offer to talk, under Fry’s watch, they subsequently provided a grossly misleading “genuine steps” statement about the steps theyclaimed to have taken to try to resolve the matter prior to bringing it to court. The truth is that they had absolutely and unmistakeably failed in complying with the law because at no time did man X or man Y (or Susan) try to resolve the matters with John (or me) prior to commencing the legal action against him – and they admitted it by using the excuse that they couldn’t try to negotiate with me – when they didn’t even include me as a party in this new action and had ignored my overtures!! Their weak excuse is just one example of how ludicrous and desperate their case is. They had to redo that document as well and, when forced to amend his so-called “genuine steps” Fry added the ridiculous claim that “The proceeding was required to be prepared and filed urgently, in circumstanceswhere some (but not all) of the claims made in the proceeding were subject to impending limitations dates” – this claim is ludicrous given that they had had months in which they could have contacted us to try to resolve things, but chose not to do so, and he totally ignored the fact that I had approached them in March to try to resolve it and they had ignored me. Further, they additionally claimed “The allegations the subject of the claims made by the applicants in the proceeding had also been put to the first respondent (including in his capacity as a director of the second respondent) at a public examination conducted on 23 May 2024, at which examination the first respondent denied the allegations the subject of the claims now made by the applicants in the proceeding” – the fact is that the majority of the claims had not been put to John in any way that at all resembled the claims now brought. They were desperate to try to find something, anything, that might get legs for their “genuine steps”, but abysmally failed.
Additionally, and in the face of abundant proof to the opposite, Fry has continued man X and man Y’s fraudulent assertions that money has not been paid which has been proven to have been paid. Fry was fully aware that specific sums of money had been paid[23], and yet continued to falsely infer that they have not been paid[24]. It adds even more credibility to my claims regarding his appalling conduct – but really, how unconscionable is that conduct?!
What they wanted to do
John had to take out a mortgage to pay for all the legal costs that Fry, Lionel Green, man X and Susan Curnow were forcing on us. When Fry, Green, man X and Susan Curnow received notification that the mortgage was gong to be lodged, they contacted the titles office and stopped the mortgage being lodged in the short-term. They also made noises about putting an injunction or freezing order application to the court to stop the mortgage from being lodged at all and to stop us from acting on our own bank accounts for pretty much anything other than living expenses and legal fees. How absolutely outrageous, contemptible, and downright despicable.
What it comes down to
Aside from what certainly appears to be the conflicts of interest between Tony and man X and man Y (and now Susan), the lies Tony told, the way he hid the truth and facts, and the way he has conducted himself shamefully (in my opinion), what it really comes down to is this: while I was in bankruptcy, Tony either made the deliberate decision to not do assessments of the property transfers including by lying about having done them, or did them and hid them, and since Fry was one of his legal advisors, it could be construed that Fry gave that advice to Tony. Whichever Tony did, the result was that he had convinced John that he, Tony, was not ever going to do anything at all about trying to take the properties (Tony did not lodge any liens, or caveats or any such mechanism that would tie Tony to any one of the properties – and Fry did not advise him to do so, even after the interrogations); so then, believing Tony when he indicated that he was leaving the properties alone, John naively worked very hard and paid off the loans, significantly improved each of the properties, and reaped the benefit of all his own very hard work and at his own cost. Then, and only then, Tony, with the very able assistance, and under the advice and guidance, of Fry, has then come out from hiding and said, thank you very much John, I will now take all that and give it to man X and man Y, including your own share. Fry, having given that guidance and advice to Tony, has now given the same (or very similar) guidance and advice to Man X and Susan Curnow, and is acting on their behalf to try to enforce it.
See also my comments on the Finality of action webpage.
You make your own decision about Fry’s conduct, but it is my opinion that it is utterly unconscionable, nasty, deceitful and in at least some aspects, outright illegal. Further, it is my personal opinion that Fry is simply a nasty piece of work who is deliberately ignoring his legislated responsibilities, including to not deceive the court.
[1] https://www.greenslist.com.au/s/barrister/0030o00002gEiBDAA0/benjamin-fry
[2] P-138:28-31 (transcript dated 23 May 2024)
[3] P-173:28-42 (transcript dated 23 May 2024)
[4] Excerpt from P-225:14–P-227:13 (transcript dated 23 May 2024)
[5] P-229:35-37 (2 transcript dated 3 May 2024).
[6] P-202:12 (transcript dated 23 May 2024)
[7] P-221:26–P-222:35 (transcript dated 23 May 2024)
[8] Application dated 25 July 2024 and Amended Application dated 1 October 2024, at [12] and statement of claim dated 25 July 2024 and Amended statement of claim dated 1 October 2024, at [L].
[9] Deed of assignment dated 10 July 2024, at clause 1.3.
[10] P-196:22 (transcript dated 23 May 2024)
[11] P-201:24-25 (transcript dated 23 May 2024)
[12] P-225:14–P-227:13 (transcript dated 23 May 2024)
[13] Statement of claim dated 25 July 2024, at [27]-[29]
[14] P-80:22–P-81:3, P-81:30–P82:11 (transcript dated 22 May 2024)
[15] P-231:37–P-232:9 (transcript dated 23 May 2024)
[16] P-229:26-30 (transcript dated 23 May 2024).
[17] P-229:35-37 (transcript dated 23 May 2024).
[18] P-229:42–P-230:2 (transcript dated 23 May 2024).
[19] P-228: 25–P-229:7 (transcript dated 23 May 2024)
[20] P-230: 28-46 (transcript dated 23 May 2024)
[21] P-231:5-22 (transcript dated 23 May 2024).
[22] P-26:18-22 (transcript dated 22 May 2024)
[23] He saw the receipts, bank account statements, and actual bank payment confirmations, as well as sworn testimony.
[24] The statement of claim prepared by him contains many such inferences (which could be deemed to be outright claims).