Report : Tricia Takanawa
Content : ASIC mistakes, KordaMentha, Commonwealth Bank lies, Irma Dulnunan, Storm financial documents
Wednesday, 4th January 2012
In a skirmish in early 2009 the CBA receivers and managers KordaMentha successfully end up with Storm’s database after the regulator forced the Cassimatis’ with threats of imprisonment to hand it over.
If you thought that ASIC has not been in cahoots with the CBA all along to the detriment of Storm clients, then think again! In late 2008 and early 2009 the CBA acted swiftly, brutally and with overwhelming force to put down the rebellious Storm and its clients. Unfortunately for the CBA at the time and to this day it underestimated Storm and Storm client resistance. By the end of the first quarter 2009 it had become clear to the CBA that it had an ongoing battle on its hands with many hundreds of former Storm clients who were determined to not sit idly by. As with all battles, collecting sufficient and accurate intelligence plays a major part in the outcome of any battle.
To this end the CBA’s receivers and managers had in their possession copies of records contained on the Storm database. These records contained all of Storm’s corporate information and client information such as: copies of statements of advice, client cashflows and clients scanned data.
There was an additional Storm database stored on a software platform called Phormula. This database managed Storms internal communications and also stored Storm client file notes. Phormula was licenced from a related party company called Ignite Financial Systems and Research P/L of which Emmanuel and Julie Cassimatis were directors. When Storm went into external administration on 9 Jan 09 the Phormula licence to Storm lapsed. This meant that eventually CBA’s receivers and managers KordaMentha would not have access on behalf of CBA to Storm client file notes. Accordingly it became necessary and highly desirable for CBA’s receivers and manager, KordaMentha, to try and obtain this client intelligence, however the problem was that neither the CBA nor KordaMentha had any legal right to demand the Phormula database from ignite. What to do…!
In March 09 after Ignite refused to provide the Phormula software, ASIC commenced legal proceedings against Ignite to rectify this and procure the Phormula database among many other documents. ASIC claimed that it required the Phormula database as ‘part of its ongoing investigation into Storm matters’. The irony is that the CBAs receivers and managers KordaMentha and ASIC already had access to all of Storms records in any case. It appears that one of the reasons the additional copies of the databases were needed was to see (post Storm closure in 2009) which client and Storm files the Cassimatis’ were directly accessing from their copy of the database, if at all. This digital footprint intelligence would then give those opposing Storm client actions the ammunition required to repel any potential legal threats. Forewarned is forearmed as they say.
27 May 09 – ASIC demands all Storm related records including all client records in the possession of Mr Cassimatis by issuing a notice under s33 of the ASIC Act 2001 and taking the Cassimatis’ to court. Among other things ASIC threatened the Cassimatis’ with prison if they did not hand over the records.
21 Jul 09 – Storm client records stored on a hard drive that were demanded by ASIC on the 27 May 09 are produced to ASIC by the Cassimatis’. The hard drive was collected by ASIC lawyer Irma Dulnuan on the understanding and agreement by ASIC that the hard drive would be returned to the Cassimatis’ in a timely manner. It is worth noting at this point that s127 of the ASIC Act 2001 (Cth), subject to limited exceptions set out therein, obliges ASIC to maintain the confidentiality attaching to any information provided to ASIC in compliance with a legitimate notice issued by ASIC.
Clear and undisputable EVIDENCE emerges that ASIC has been obtaining client records from Mr Cassimatis and passing them on to CBA’s receivers, KordaMentha.
27 Jul 09 – ASIC gives the game away due to either their ineptness, laziness or cocky-ness when the hard drive that ASIC demanded from the Cassimatis’ is returned by Failsafe couriers. The consignment notice shows that the sender (the party returning the hard drive) is not ASIC as one would expect, but surprise surprise, the receivers and managers acting on behalf of CBA, KordaMentha, with a contact name of Denny Husen.
In a sinister twist only discovered after the event and not noticed or advised on the day, it turns out that on 21 July 09 when ASIC lawyer Irma Dulnuan actually collected the hard drive she was accompanied by a representative of CBA’s receivers. When ASIC was later cornered and queried about the hard drive going to CBA receivers, ASIC offered the excuse that they used CBA receivers, KordaMentha, as their ‘outsourced forensic IT consultants’. How lame is this, of all IT consulting firms in Australia, ASIC just happened by pure coincidence to choose the CBAs receivers. Clearly ASIC needs to be reminded of s127 of the ASIC Act pertaining to confidentiality….although if one is a law unto oneself then it really doesn’t matter how one conducts themselves, does it?
All the way along for the last 3 years if CBA wanted something it used any means at its disposal to get it just as the CBA used ASIC to gag Storm and close down the DOCA ensuring that Storm went into liquidation preventing any further action by Storm against CBA. But the gagging and the DOCA are whole other stories which are on their way.
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Content : ASIC mistakes, KordaMentha, Commonwealth Bank lies, Irma Dulnunan, Storm financial documents
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