Category: Articles

China Taiping continues to pay for Ashurst’s incompetence

On the 28th of June 2021, Ashurst Australia paid me $46,000 for costs awarded against their client China Taiping in a hearing before the Supreme Court of New South Wales. The judgement is available here.

This $46,000 plus the hundreds of thousands (or more) of Ashurst’s direct and indirect costs to China Taiping could have been avoided if their lawyers were competent. China Taiping, please learn from your mistakes – using Ashurst is just too costly, not in terms of hourly rates, but in terms of the amount of new and innovative loss they can create for their clients, and in Sargon’s case, the wider Australian economy including Westpac and 30+ individual investors.

Why did Ashurst send me this money?

After blowing up Sargon by appointing Receivers in January 2020, Taiping so far has recovered less than A$4 million (before the costs of multiple court hearings), compared to the A$113 million they’d invested in Sargon (primarily in equity exposure).

This A$109 million+ loss is directly attributed to Ashurst’s advice to appoint Receivers in apparent ignorance or disregard of their client’s investment position. The first and most natural consequence of any receivership appointment over a company is to devalue equity in the company (generally to nil) and destroy the rights attached to that equity. When your exposure is many multiples more equity than it is debt, and there’s nothing materially wrong with the business, you do not appoint receivers.

When you are Ashurst, and you had one job to do, and you fail to the tune of more than $100 million Australian dollars, you need to find someone to blame. They decided to go after me – which has started to prove to be a mistake for them, given litigation actually requires evidence to succeed, as opposed to spurious allegations with no basis. This hasn’t stopped them with briefing journalists directly and indirectly with their fabricated stories and threatening “to destroy them” if they write anything else.

Blame

Over half a year after appointing Receivers and still no closer to any meaningful recoveries, Ashurst were scrambling for alternative recoveries and filed litigation against me in the Supreme Court of New South Wales regarding a HK$653m financing facility between ten (10) entities, including myself, a joint venture entity with China Taiping themselves, an entity associated with Dr Aron Ping D’Souza, a Hong Kong entity which China Taiping were a primary beneficiary of, and China Taiping’s subsidiary China Insurance Group Finance Company Limited (“China Insurance”, another of China Taiping’s business fronts, along with the now-well-known Taiping Trustees Limited).

Financial Substance

Sargon was not a party to this financing agreement, however the facility was used by China Taiping to gain exposure to Sargon equity via trusts and share pledges (which constituted ~80%+ of the security and accounted for ~25% of the funds deployed under the facility). Ironically, this means that, by advising that Taiping Trustees to appoint Receivers over Sargon, Ashurst destroyed the security position of their other client, China Insurance, under this larger HK$653m facility. Perhaps the eight-month delay wasn’t to prepare for the litigation, but to figure out how to let their client know what they’d done. Specifically the security that Ashurst blew up in an instant took me and a hundred others 6 years to build, cost hundreds of millions of dollars and was worth many multiples of the total facility size at their own valuations that they routinely provided to their own internal and external auditors.

Ultimately, they destroyed more than 80% of the security and then seemed to ignore the remainder, instead deciding to sue me personally despite me not personally holding any of the security pledged under the facility, nor having any personal benefit of the money originally advanced, nor holding any of the investments made through it. The first thing Ashurst did on their crusade against me was to rush through an urgent “freezing order” application. Ashurst’s great legal minds had determined that it was now (after eight months) extremely urgent to freeze my assets – so urgent, in fact, that they tried to make their application ‘ex parte’, meaning I wouldn’t even have a chance to present a defence. Thankfully, the judge must’ve realised something was fishy, because they refused to do that and ordered a contested hearing instead.

What did Ashurst claim?

Obtaining a freezing order is considered ”drastic” and requires more than just a claim that money’s owing – China Taiping needed to establish some form of imminent threat that I’d dissipate my assets (those that they hadn’t already destroyed1) or that my “probity could not be relied upon” (in other words, I couldn’t be trusted). After almost nine months of prep time, this is what Ashurst came up with:

  • McGrathNicol, following their appointment as receivers over Sargon Capital, expressed “concern that funds may have been misappropriated or misdirected” by me from Sargon.
  • I had not “acceded fully” to requests by McGrathNicol regarding the Sargon receivership.
  • I don’t own any real estate in Australia and “may” have structured my affairs to avoid ready identification of my assets.
  • I’d “appeared” to evade service of China Insurance’s lawsuit.

Note that the quotation marks above were the judge quoting the exact words used by China Insurance’s barrister, presumably to emphasise just how equivocal and speculative they were. In support of these “arguments”, Ashurst presented the following “evidence”:

  • An affidavit from each of Shaun Fraser and Jason Preston of McGrathNicol (who’d each taken personal liability upon accepting the receivership appointment, had their bills paid by China Taiping, were referred by Ashurst to this opportunity, and are routinely referred work by Ashurst) where they noted that they’d failed to trace parts of the first A$50m drawdown under the HK$500m (~A$81m) promissory note and alleged that these “funds may have been misappropriated or misdirected”.
  • An allegation that I had somehow ‘misled’ China Taiping when drawing down the remaining A$31m.
  • An allegation, based on evidence given to the court by the Receivers, that I had changed the trustee of the Trimantium Sargon Investment Trust after the receivership appointment to “obstruct” the Receivers.
  • An allegation that I’d invested the funds under the facility ”in companies which [I have] no known legal relationship”.
  • An affidavit from a process server indicating they’d tried an intercom at my old address a few times and received no response.

What actually happened?

Every single one of these attacks on my character were rejected by the Court.

When it came to misdirecting money, China Insurance’s barrister conceded in court that the Receivers didn’t actually know what had happened with the money they’d failed to trace – in other words, they were jumping to defamatory conclusions with no basis beyond their own inability to do their jobs. In fact – as China Taiping would have known – the entirety of that A$50m drawdown is ultimately traceable to Trimantium Taiping Investment Management’s investment in A$50m of Sargon seed preference shares, as directed by China Taiping, clearly stated in the drawdown request signed by China Taiping, and negotiated extensively between the parties and their lawyers in the first half of 2018.

What’s more, these shares were still owned by Trimantium Taiping Investment Management (by then renamed to Trimantium Investment Management) when Shaun Fraser and Jason Preston were appointed receivers over it. The assets were in their possession all along – perhaps they’d conveniently overlooked them because their value immediately became zero when McGrathNicol accepted the appointment. Similarly, with the second drawdown, the investments made with it were ultimately held exactly where they were required to be, and were within the control of Shaun Fraser and Jason Preston when they made these affidavits claiming that the funds may have been misappropriated. It’s not surprising, then, that the judge concluded “I do not see the Receivers’ tentative conclusions to be a sound basis upon which to draw any conclusion about Mr Kingston’s probity”.

McGrathNicol’s concerning disconnect with the facts continued on to the ‘obstruction’ allegations – the change in trustee they swore to the Court occurred after their appointment had in fact occurred months before the appointment, and McGrathNicol were notified of this (and provided a copy of the relevant documents) months before they made their sworn affidavits. When this was pointed out, China Taiping’s barrister was put in the awkward position of trying to argue that while “the Receivers had been mistaken in their assertion that Mr Kingston had effected the change of trustees after their appointment  […] the change of trustees occurred around the time when China Insurance served notices of default on Mr Kingston2 [… therefore] Mr Kingston’s replacement of TCFM as trustee of the Trust should be seen as an example of him “obstructing” the Receivers (although they had not then been appointed).” The judge was clearly unimpressed: “In my opinion, it is drawing a long bow to conclude from these matters that Mr Kingston has acted in a way that suggests that his probity cannot be relied on”.

Ashurst’s remaining arguments were dismissed even more briefly: as my barrister pointed out to the Court, these entities I had ‘no known legal relationship with’ were all parties to the contract between myself and China Insurance. What’s more, I wasn’t the one investing through those companies – China Taiping was.

As to my failure to ‘accede fully’ to the Receivers’ requests, the Court felt it necessary to note: “Mr Hartford Davis [China Insurance’s barrister] did not develop this submission with great enthusiasm.

It’s not surprising Ashurst and Mr Hartford Davis appear to have parted ways on the case soon after (one of many times China Taiping have switched counsel; presumably they each got sick of getting embarrassed trying to salvage terrible briefs). Ultimately, “Mr Hartford Davis accepted that China Insurance could not point to any imminent threat of dissipation by Mr Kingston of his assets or of any “other special feature of the case beyond the Receivers’ expressions of concern.”

The judge then goes on to say “the “structure” [of my affairs] of which complaint is made is not identified, nor does China Insurance point to any relevant change in the structure brought about by Mr Kingston” – a very accurately worded observation, given the only relevant change to the structure was the destruction of Sargon brought about by Ashurst.  The final attack on my integrity, that I’d ‘evaded service’, was so thin that the Court concluded that “I do not see these matters as warranting a conclusion, nor even a suggestion, that Mr Kingston was “evading” service”.

In conclusion

To sum it up, each of Ashurst’s claims were either clearly wrong or lacked any evidentiary basis. Clearly, evidence is something that Ashurst considers only after making submissions to Court. Getting something wrong innocently in Court is not a crime, so to have that plausible deniability, they mustn’t want to see any evidence until they’ve settled their submissions and sent them off to Court – throwing both McGrathNicol and their barrister under the bus in the process.

These Big Law tactics to squash individuals are bundled up in the practice of “legal strategy” and resulted in the public being presented with a narrative that I had stolen money (in excess of A$40 million) and my probity was to be questioned, all in order to freeze my personal assets and put me on a stipend salary for the next 2-3 years. This means they can continue to defame and destroy my reputation, rebuild theirs, try to re-write the Sargon/China Taiping story as a success or at least legally justified all in the period were I have a limited ability to “fight back”.

Thankfully, judges still look at evidence, and ruled against China Insurance. The freezing order application was dismissed, and the judge awarded costs in my favour. In the end I got about 75% of my actual out of pocket costs.

Of course, Ashurst haven’t bothered to go back to all the people they tried spreading these “arguments” against my probity amongst (including all the media they’ve been briefing over the past eighteen months) to inform them the allegations they were spreading about my character were all dismissed. Neither has McGrathNicol retracted their “expressions of concern” regarding funds being misappropriated, which were ultimately without basis but nonetheless were spread amongst stakeholders and interested parties, including both Wexted Advisors (Sargon’s liquidators, who Ashurst referred for the appointment and then hung out to dry by having McGrathNicol take all the cash and leave Wexted with only A$50k for their costs of liquidation) and EY (who managed the administration of most of Sargon’s subsidiaries, opposed by China Taiping, and ultimately only managed to recover cents on the dollar through a distressed sale process that required an 11th-hour Federal Court application contested by Ashurst and China Taiping after they walked away from a deal that they had previously agreed to at the last moment).

With all the Promissory Note principal accounted for, McGrathNicol is left with nothing to justify their appointment except the alleged non-payment of interest in December 2019 – which, as I’ve previously stated, is as wrong as every other self-serving fabrication postulated by Ashurst and China Taiping. Sargon’s finance team authorised the now-infamous A$4.4m December payment on the basis it was for the Promissory Note (as Ashurst and China Taiping have had ample opportunities to confirm through examining Sargon’s books and records and examining its officers under oath at Public Examinations), and I’d always understood that China Taiping’s finance team applied it to the Promissory Note (given that’s what I was told by Taiping Trustees at the time). As I’ve discussed in previous posts, any other application by China Taiping of that A$4.4m of Sargon’s funds would have had no legal or commercial basis – Sargon didn’t owe any payment obligations to any company in the China Taiping group other than under the Promissory Note. Given that Ashurst was also planning the appointment of receivers over Sargon, you’d expect that they would have advised China Taiping of the risk of this payment being a recoverable transaction and unwound by Sargon’s eventual liquidators if misapplied. Ultimately, it’s worked out conveniently for them that they left Wexted unfunded.

If Ashurst continues with this haphazard litigation campaign they’ve started against Australian companies and citizens, I expect that final nail will come undone and they’ll no longer be able to hide the truth. At that point, this $46,000 will be a drop in the bucket compared to the eventual compensation they and their client will have to pay to the victims of their actions.

Ashurst’s “strategy” of having McGrathNicol phone up leaders in the Australian business community and telling them I stole money is going to come out, and it’s not going to be pretty for either of them.

Footnotes

1 I had invested 95%+ of my personal assets into Sargon between 2013 and 2019, the proceeds of all my prior entrepreneurial efforts and salary income.

2 This ‘fact’ is also untrue, which would have been obvious to Mr Hartford Davis if Ashurst had included a timeline of documents in his brief.

Building an Inferno Chamber

Disclaimer: Obviously, fires are intrinsically unsafe, so please don’t try anything like this at home especially outside of a controlled environment. Also, please be mindful of seasonal fire restrictions, local laws, fire regulations and common sense. Notify neighbours and fire departments before performing any large private burn that could create risk for the broader community. Don’t be stupid.

Galactic Bioware’s 66 square foot (10m2) ventilated Inferno Chamber is rated to temperatures of over 1,832℉ (1,000℃) for testing Power Suits against extreme temperature conditions, direct flame contact and smoke inhalation.

The Chamber is situated at approx 1,640 ft (500 metres) of altitude, average atmospheric pressure of 90kPa (0.94atm) with average temperature low/high range of 38.3℉ (3.5℃) to 54.7℉ (12.6℃). It is located in a region with very high rainfall, low average temperatures and low population density as a general safety precaution.

The facility is supported by 2 x 30,000L water tanks, 2 x water dams and a high-flow bore, as well as a gamut of safety features including temperature, O2, CO and CO2 diagnostics, extinguishers, fire blankets, high-flow shower and 24/7 video surveillance.

The Build

Some of the challenges with building structures for sustained 1,000℃+ temperatures are that many of the established construction methods and core materials do not like high heat. For example, concrete explodes at surprisingly low temperatures due to its water content and sudden rises in built-up pressure when heated. Yet concrete is one of the most frequently used building materials by mass – twice that of steel, wood, plastics, and aluminium combined. Wood is also not famously fire retardant. Mortar used between bricks behaves similarly to concrete at high temperature, although not as explosive.

Instead, high heat refractory fire bricks need to be used that are designed to endure high heat for a prolonged period of time. Air setting refractory mortar instead of cement and water based mortar must be used to bond together the fire bricks. This approach can withstand temperature up to ~2,700℉ (~1,480℃).

“Traditional” concrete foundation approaches can be used to support the fire brick walls but they need to be deeper to ensure there is at least 30cm of soil and firebrick wall between the lowest point of the fire / heat source and the highest point of the concrete. Basically – start the brick wall 3-4 brick rows lower than you normally would. Other than that, the fire bricks can be laid in a normal brick pattern and basically operate as such. For our specific requirements, we then installed a variety of specialist equipment to monitor the internal environment for accurate testing purposes.

Even with just wood as fuel, fires with enclosed walls on all sides of a person can get sufficiently hot to replicate truly dangerous environments. We use our high range k-type immersible thermocouples distributed across the Inferno Chamber to wait for the desired temperature gradient and make sure there is enough smoke to simulate a dangerous structural fire and then we’re ready to test the Galactic Bioware Power Suits.

Stay tuned.

Australia’s Berry Amendment

The Berry Amendment requires U.S. defense procurement come from domestic sources, Australia does not have an equivalent.

The U.S. protects its national interests and its domestic defense capability and capacity through a series of strict common sense procurement rules governed by legislation such as the Buy American Act and the Berry Amendment.

In order to protect the U.S. industrial base during periods of adversity and war, Congress passed domestic source restrictions as part of the 1941 Fifth Supplemental Department of Defense (DOD) Appropriations Act. These provisions later became known as the Berry Amendment. The Berry Amendment (Title 10 United States Code [U.S.C.] §2533a, Requirement to Buy Certain Articles from American Sources; Exceptions) contains a number of domestic source restrictions that prohibit DOD from acquiring food, clothing (including military uniforms), fabrics (including ballistic fibers), stainless steel, and hand or measuring tools that are not grown or produced in the United States. The Berry Amendment applies to DOD purchases only.

The [CRS] committee supports maintaining the integrity of section 2533a of title 10, United States Code, commonly referred to as the `Berry Amendment,’ which requires 100% U.S. content for certain products sourced for the Armed Forces. The committee is concerned with protecting the supply chain and domestic production base for components and weapon systems that are vital to the Armed Forces. In addition, the practice of sourcing certain products and materials from foreign entities in violation of the Berry Amendment may harm the domestic industrial base, as well as result in U.S. job losses. Therefore, elsewhere in this Act, the committee includes a provision that would require the Inspector General of the Department of Defense to periodically review the Department’s compliance with established restrictions.

Congressional Research Service, Valerie Bailey Grasso, Specialist in Defense Acquisition, February 24, 2014, https://fas.org/sgp/crs/natsec/RL31236.pdf

Relevant to Galactic Bioware is the US DOD’s Harnessing Emerging Research Opportunities to Empower Soldiers (HEROES) program which is strengthening each year.

The budget request contained $115.2 million in PE 62143A for Soldier Lethality Technology. The committee is aware of the work being done by the U.S. Army’s Combat Capabilities Development Command (CCDC) Soldier Center in improving the protection, survivability, mobility, and combat effectiveness of the Army. The committee is also aware that the Harnessing Emerging Research Opportunities to Empower Soldiers (HEROES) program is an ongoing joint research and development initiative involving both academia and industry that accelerates research and innovation through integration of intellectual assets and research facilities. The committee believes programs like HEROES provide benefit to research in areas of advanced ballistic polymers for body armor, fibers to make uniforms more fire resistant, and lightweight structures for advanced shelters that provide tangible benefits to the warfighter. To ensure the Army remains at the cutting edge of technology in these critical areas, the committee recommends an increase of $5.0 million in PE 62143A for the HEROES program.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2020, Report of the Committee on Armed Services, https://www.govinfo.gov/content/pkg/CRPT-116hrpt120/html/CRPT-116hrpt120.htm

Perhaps the closest Australian equivalent is the Land Combat, Amphibious Warfare and Special Operations stream of Defence’s innovation priorities. A focus on special operations capabilities including enhanced human performance.

Land forces require the mobility, firepower, protection and situational awareness capabilities to deploy quickly, achieve their objectives and return home safely.

Defence is seeking innovative proposals for leading-edge equipment to bolster ADF land forces in these capability areas, including amphibious warfare. The Defence Innovation Hub is seeking innovative approaches to developing advanced protection systems for vehicles and individual soldiers that do not inhibit mobility, developing technology underpinned by automation, autonomy and autonomous systems to provide capability enhancements to the land force, enhancing the efficiency and effectiveness of combatants in hostile environments through the use of new and emerging technologies, and delivering improved signature management and disruption technologies.

Australian Defence Force’s Defence Innovation Hub

Australia’s approach through the Australian Government’s Commonwealth Procurement Rules (CPRs) is significantly less developed, less ambitious and may require attention given worsening regional geopolitical conditions.

The Commonwealth Procurement Rules provide an exemption for “procurement of goods and services by, or on behalf of, the Defence Intelligence Organisation, the Australian Signals Directorate, or the Australian Geospatial-Intelligence Organisation.” but do not mandate an explicit preference for domestic supply where that supply exists or could exist.

The Australian Defence Force is undergoing a review intended to strengthen how defence does business with Australian industry but sets out no specific objectives. The 2016 White Paper outlined a strategy for resetting the Defence-industry partnership through the Centre for Defence Industry Capability (CDIC). The purpose of the CDIC is to provide strategic leadership for the sector, and to help build the capability and capacity of Australian industry to support the ADF.

The CDIC will be funded at approximately $23 million per year, which will be redirected from existing Defence industry programs funding. The CDIC is designed to help transform the Defence and industry relationship, and to fund new industry development, critical skilling and export programs, as well as facilitate access to Defence’s new innovation programs for small to medium enterprises. In consultation with Government, the CDIC will drive the strategic vision for the defence industry sector, building on the capability needs identified in the Integrated Investment Program. The CDIC will focus on delivering initiatives within three core activities—industry development, facilitating innovation, and business competitiveness and exports.

https://www.defence.gov.au/whitepaper/Docs/2016-Defence-Industry-Policy-Statement.pdf

The “Final Report” handed down by the CDIC in 2020 does not quantify any goals for domestic procurement percentages or minimum dollar spend in the domestic sources. The 2020 Defence Strategic Update and 2020 Force Structure Plan also does not quantify any Australian procurement goals or objectives. Throughout 2020, the Minister for Defence Industry engaged with the Australian Defence industry and identified a number of opportunities to improve Defence engagement with [Australian] industry and to build a more resilient Defence industrial base, but only at a procedural level.

A key opportunity identified is that it may be timely for the Department of Defence (Defence) to conduct a review of the Australian Standard for Defence Contracting (ASDEFCON) suite of tendering and contracting templates and relevant procurement processes and practices to support these objectives. 

https://www1.defence.gov.au/business-industry/procurement/contracting-templates/asdefcon-suite#ASDEFCON%20and%20Defence%20Procurement%20Review

The articles go on to say “Some of the opportunities for Defence procurement contracting processes and practices identified by the survey responses include:

  • simplifying and streamlining the ASDEFCON contracting templates;
  • removing complexity and onerous flow down obligations that lead to additional cost and risk to the suppliers;
  • developing subcontracting templates for industry to use;
  • expanding Defence commercial acumen within its procurement practices;
  • mandating Defence payment terms through the supply chain and considering partial payments of milestones to facilitate cash flow to industry, including small to medium enterprises (SMEs); and
  • relaxing some barriers to industry’s (particularly SMEs) participation in Defence’s supply chain.”

Much more could be done to stimulate and sustain a robust domestic defence industry in Australia and there seems to be political ambitions to do so, but it has to start with public quantified goals for domestic supply to incentivise talent to start and work for Australian defence companies. Current (public) goals for the domestication of defence supply are unquantified and not timelined. Australia does not have the demand or budget to be self-reliant across the military and intelligence capability spectrum, but in certain spots, could benefit from publicising the intention (subject to availability, quality and performance of course) to transition specific spending from foreign suppliers to domestic ones. This could enable crowding-in and a right-sizing of private investment that is matched to the potential transitioned spending. Done well and in focused “bite size” waves, the Australian economy generally will benefit as will the security outcomes in an increasingly uncertain future.

Ashurst #CashFurst

There’s nothing that “top tier” law firms like more than the snarky wordplay on their names established and cemented into the parlance of bored law students around exam time, clerkship and grad season.

Since my last reflection piece on the Sargon Saga, Ashurst’s limp attack dogs have had the cunning tech savvy to successfully fill in my blog’s contact form asking me to take down my article(s) on the basis of defamation of the reputations of the people who destroyed my company and cited malice as my primary intent. The contact form submission is marked as “NOT FOR PUBLICATION” so I will not publish it (for now), notwithstanding I owe them no such obligation and they have not offered me any such courtesy when they abused the public examinations process, by all accounts and certainly in my opinion, by asking countless questions that had nothing to do with Sargon’s examinable affairs. There is nothing of substance in the submission anyway other than bare denials and quoting their own prior erroneous/incomplete work as “evidence”, never actually engaging on objective evidence and pesky facts.

In any event, an eye-for-an-eye and the world would be blind – so I will take the high-road and not publish. FYI, by arguing malice, they are trying to remove defences available to me such as honest opinion. The problem is, my primary intent is patently not malice, it is telling my side of the story, in totality, over a series of blog posts on my personal website. I highly doubt that a “top tier” law firm’s partners’ reputation could be impacted by a lowly layman blogger like myself, unless of course what I’m saying is true, then the defamation crusade is unlikely to be successful. It is clear that the primary motivation of any defamation campaign against me would be to deplete my financial resources as it was the assumed intent with the spectacularly failed Mareva injunction where the intention was clearly not to put forward a coherent case but instead to burn my cash. Unless Ashurst was, in fact, trying to put forward a coherent case, in which case they have bigger existential problems than my blog posts.

Excitingly, Ashurst also advised me of a new client conflict in the process, now Ashurst is acting for Mr James Marshall and Mr David Greenberg, the masterminds of the flawless recovery of funds on behalf of Taiping Trustees Limited. So now Ashurst needs to juggle legal professional privilege in addition to its plethora of client-client and client-firm poorly or not managed conflicts. I’m no top tier lawyer myself, but I struggle to see how Ashurst’s conflict epicentre Sydney office can act for two Sydney partners in their personal capacity at the same time as a large client (Taiping) against the same opponent, little old me – a Ginger Visionary, particularly in a campaign where much of the legal contention sits on the alleged conduct of the “defamed” partners themselves. How do they intend to rank their internal partners’ spoils of war vs. their client’s rights in the unlikely event of a victory? How do they deal with the systemic problem that their partners’ arguments will turn on client communications and instructions, or lack thereof, which is kind of what privilege is all about? No doubt they’ll just advise Taiping that the conflict is manageable (lol) and to waive privilege! That would be next level conflict stuff, out of my legal ethics pay-grade and into the stuff that legal ethics professors’ dreams are made of.

To the law students of future legal ethics subjects at university, I’m sorry you have to read all this rubbish, but this is unprecedented.

This blog post, which does not have the primary intent of malice, is intended to establish two positions:

  1. No interest was owing by Sargon or Trimantium Taiping Investment Management at the time that receivers were appointed by Ashurst unless Ashurst misdirected transit money.
  2. Taiping Trustee Limited’s poor record keeping and staff turnover, and Ashurst’s lack of attention to detail were the key points of failure as to why more prudent options were ignored/never considered in favour of the blunt and ineffective weapon of receivership.

If Ashurst had read the investment documentation and emails with the same attention as they read my blog posts, or undertook the path they represented to me in December 2019 of appointing an independent investigating accountant to get to the bottom of the whole structure for their and their client’s educational benefit, then their client would by now likely be in funds exceeding A$200 million and Ashurst wouldn’t be dealing with an annoying blogger impugning their otherwise stellar reputation.

More on the investment structure

Trimantium Taiping Investment Management was set up in early 2018 as an investment management partnership between Trimantium Capital and China Taiping, and launched its first fund, the Trimantium Taiping Investment Fund I, with China Taiping’s subsidiary, Taiping Trustees Limited, as its primary investor and beneficiary, providing HKD 500,000,000 in seed capital. 

For tax, FIRB, and other reasons, China Taiping advanced the funds via a Promissory Note to the Trimantium Taiping Investment Fund I, secured over the fund’s investments. They specifically selected Taiping Trustees Limited as their investment vehicle as it was a trustee company capable of syndicating exposure to promissory notes across other funds and investors within the China Taiping group. China Taiping’s Overseas Investments Division had to approve all investments (and appointed Australian lawyers to review and negotiate the various contracts implementing said investments on behalf of China Taiping).

By January 2020, the Trimantium Taiping Investment Fund I held the following investments:

  • A$50,000,000 invested into 333,334 Seed Preference Shares in Sargon Capital Pty Ltd via Trimantium Sargon Investment Trust;
  • A$10,000,000 invested in 100,000 Class A Preference Shares in Sargon Capital Pty Ltd via China Silk Road Fund; and
  • A$10,400,000 invested in secured debt in Sargon Capital Pty Ltd (behind circa. A$30,000,000 of senior secured debt from Westpac in Sargon’s operating subsidiaries). 

When this investment was negotiated and implemented, the parties never conceived of it as a simple loan agreement – the promissory note was simply the mechanism to inject the funds that most suited China Taiping’s needs. Their legal counsel at the time probably spent more time reviewing the share purchase agreement for the 333,334 Seed Preference Shares than they did on the initial Promissory Note itself. 

In fact, here’s how Taiping Trustees characterised their investment to their fund auditor, PwC Hong Kong, in early 2019. This characterisation was consistent with the combination of oral and written agreements so there was no reason for me make any substantive adjustments to the audit confirmation (authored by Taiping Trustees Limited):

Excerpt from PwC Audit Confirmation in 2019 of the Promissory Note investment that agreed with China Taiping’s internal records.

Taiping Trustees’ principal investment holding was the Trimantium Taiping Investment Fund I, and the written terms of the Promissory Note notwithstanding the investment was always understood to be principally a seed equity investment through this venture fund, with a high probability of renewal or conversion into direct holdings over time. Sargon was a guarantor, not a borrower.

Note in particular how they indicated on this document that there were no strict interest and repayment terms. I had always understood this to be the commercial position on the investment until Ashurst got involved. I corrected the issuer name from ‘Sargon’ to Trimantium Taiping Investment Management Pty Ltd and signed and forwarded confirmation to their fund auditor as requested (to go with their own investment declaration under their corporate seal). Ashurst put Sargon into receivership for “unpaid interest” on an arrangement that PwC confirmed in their audit had “no scheduled repayment terms” and “no specific interest terms”. Whoops. Oh, and there was no unpaid interest – read on.

As the primary unitholder and sole lender, China Taiping had the power to replace Trimantium Taiping Investment Management as trustee of the fund with a nominee of its choice to better secure the assets. It also possessed the ability (through upstream trust structures and share pledges supported by self-executing contracts) to simply take direct ownership of Trimantium Taiping Investment Management and/or replace its board. 

Further, not only did Taiping Trustees hold share pledges supported by self-executing transfers in relation to the Trimantium Taiping Investment Fund I’s equity holdings in Sargon, Sargon actually amended its constitution to enable this security feature. Yes – China Taiping was savvy back in 2018 and negotiated a constitutional change to Sargon’s constituent documents to enable pledged shares to be smoothly exchanged in the event of default and removed the ability for the board to block the registration of the transfer provided a legitimate event of default occurred. So either Ashurst didn’t read the contracts in the first place, or didn’t believe that an event of default occurred. I suspect both might be true. 

Constitution before China Taiping’s investment:

Clause 21: Registration of Transfers

(a) Unless all of the shareholders otherwise agree in writing, the Board may not register the transfer of any share unless the transfer complies with rule 20 and is permitted under any written agreement between all of the shareholders.

(b) The Board may require the transferor or the person named as transferee in any transfer lodged for registration to furnish the company with any information the Board may think necessary for the purpose of ensuring that a transfer of shares is permitted under this Constitution or any written agreement between all of the shareholders. If that information is not furnished to the satisfaction of the Board within a period of 28 days after that request the Board may refuse to register the transfer in question.

Constitution after China Taiping’s investment:

Clause 21: Registration of Transfers

(a) Unless all of the shareholders otherwise agree in writing, the Board may not register the transfer of any share unless the transfer complies with rule 20 and is permitted under any written agreement between all of the shareholders.

(b) The Board may require the transferor or the person named as transferee in any transfer lodged for registration to furnish the company with any information the Board may think necessary for the purpose of ensuring that a transfer of shares is permitted under this Constitution or any written agreement between all of the shareholders. If that information is not furnished to the satisfaction of the Board within a period of 28 days after that request the Board may refuse to register the transfer in question.

(c) Notwithstanding any other provision of this Constitution, the Directors may not refuse to register, or suspend or delay the registration of, a transfer of shares made pursuant to a valid exercise of an enforcement power under a mortgage of or charge over the shares the subject of the transfer, and in any such case, the Directors must register the transferee as a shareholder. The Directors may rely on receipt of such transfer as conclusive notice that the mortgage or charge has become enforceable.

Each of these options were agreed and documented contractual rights of Ashurst’s client China Taiping, and using them in January 2020 would have delivered a substantial return to China Taiping as they would not have had such a destructive impact on Sargon’s business and reputation. China Taiping could take possession of (at China Taiping’s own valuation) around A$250 million of stock owned indirectly and/or pledged to them and a path to control of Sargon. All while spending probably a fiftieth of the legal fees with Ashurst.

As part of this heavily negotiated arrangement, Sargon Capital was only a guarantor of the Promissory Note. China Taiping ostensibly appointed receivers on the basis of this guarantee (and associated security). Why Ashurst advised them to do so, as opposed to the plethora of alternative options which would have seen their client recover all of their investment exposure (equity and debt) is still a mystery to me.

The outcome, however, is painfully clear – Ashurst’s “plan” did not work at all unless their plan was to destroy Sargon and provide their client with the weakest prospects of recovery (particularly net of legal fees).

To cap it all off, China Taiping also held another A$28,500,000 of equity exposure in Sargon Capital via a holding of an additional 171,000 Seed Preference Shares funded through another separate financing structure between Trimantium and China Taiping – also destroyed instantly by Ashurst’s appointment of receivers. I wish I was making this up – the destruction of so much money and 7 years of my and hundreds of other people’s work is impossible to digest, all so Ashurst could bill a few million of extra fees. Sargon (as a fast growing Ashurst client themselves) could have given Ashurst more work if James Marshall needed to meet his billing targets that badly.

I would love to see the email where Ashurst set out their reasoning for a strategy that would destroy the balance sheet of the actual borrower, Trimantium Taiping Investment Management (their client’s own investment vehicle) by appointing receivers over the guarantor – particularly when their clients’ investment exposure to the guarantor was 90% equity to 10% debt. 

But what about the interest?

After Ashurst appointed receivers over Sargon Capital Pty Ltd, they said that interest was owing on the Promissory Notes between it, Trimantium Taiping Investment Management Pty Ltd and Taiping Trustees Limited. This is not mathematically possible on proper accounting. 

As I have stated previously, it can only be true if Ashurst applied funds paid into their trust account for some other purpose, or on account of another client (that Sargon did not have any obligations towards). 

As canvassed above, Sargon shared payment obligations under the Promissory Note with Taiping Trustees with Trimantium Taiping Investment Management. When Sargon paid up interest on the Promissory Note (via Ashurst’s trust account) in December 2019, it did so to discharge these payment obligations. If this had been properly implemented by Ashurst, then they would have understood that this payment covered both Q3 and Q4 2019 interest (and in fact was paid up, in line with the interest calculations Taiping Trustees had provided in writing in November 2019, until the end of January 2020). On proper trust accounting, no interest was outstanding when receivers were appointed, and the next interest payment would have fallen due at the end of March 2020. 

Why was Ashurst’s trust account used?

In late September 2019, a representative of China Taiping told me that Taiping Trustees had sold their Promissory Note exposure in Sargon to a foreign government (they intimated it was a foreign state that cannot easily do direct financial services deals due to their sanctions list status in many countries). As mentioned previously, China Taiping had insisted on a promissory note structure through Taiping Trustees as it was a trustee vehicle and was able to syndicate promissory note exposure more broadly throughout China Taiping. They warranted at the time that they would only be syndicating the exposure within their own corporate group, which was considered acceptable given the broader relationship between Sargon, Trimantium, and China Taiping.

This new information was therefore rather concerning, and prompted me to seek advice on any KYC obligations this gave rise to. One of Sargon’s most trusted external corporate lawyers advised that, while the AML rules don’t explicitly regulate interest payments, sanctions laws are broader, and best practice as a fiduciary company would be to confirm who the new beneficiaries of your payments are. This being completely common sense and best practice, I attempted to do so.

Before making the September quarter interest payment, I asked Taiping in writing to tell me 1) if they had, in fact, sold the exposure in Sargon and 2) to whom. They refused to answer either question after multiple attempts. This was concerning. It should have been a simple answer. The fact that they refused to answer (and still to this day have not confirmed either way) is alarming. 

Taiping got Ashurst involved when Sargon refused to authorise the payment on behalf of Sargon without knowing who the ultimate beneficiary of the payment was and I asked Ashurst if they had done KYC/AML and sanctions (DFAT) checks and if they were able to provide responses to my queries on behalf of their client and they said: 

We are not aware of any sanctions law in Australia relevant to the lending of money which would prevent you from paying our clients. KYC applies to customers of a bank and not to the lenders who have lent the money to those customers.” Ashurst

This is a concerning response for so many reasons. Firstly, it continued the trend of staunchly refusing to answer the question of whether the exposure had been externally syndicated (in breach of Taiping’s representations in negotiating for the facility to be a promissory note, and potentially in breach of sanctions laws). Secondly, it served as one of many demonstrations of Ashurst’s lack of understanding of the investment structure: as I’ve previously outlined, Taiping Trustees was nothing like a bank, and the structure of their investment was nothing like a bank loan.

Ultimately, Ashurst offered the use of their trust account to keep the peace. I was happy with this solution as all of the DFAT/AUSTRAC risk fell to them and meant Sargon could release the funds (which were – all along – ready for payment and promptly paid).

I later found out from the General Counsel of Ashurst, Angela Pearson, that they had not in fact done any due diligence on the underlying beneficiaries of Taiping Trustees’ investment in the Trimantium Taiping Investment Fund I (and its investment exposure to Sargon Capital). 

My question in February 2020:

“Despite a number of attempts by me to have information about the ultimate beneficiary provided to me, both your client, and subsequently your colleagues have repeatedly ignored those requests. 

I understand that Ashurst established a trust account to hold monies in your client’s favour (into which we were instructed to make interest payments and did so), and so I expect that appropriate KYC/AML checks have been conducted by your firm, but it is a matter I would like to raise with you nonetheless, given the risks involved.

We understand that your client has syndicated or on-sold at least a proportion of their debt exposure in the months leading up to this issue [receivership], and despite efforts by us to be provided with information about the ultimate beneficial owners we are dealing with, we are still unaware of those third parties’ identities. Our concerns have been heightened by the repeated refusal of a number of parties, including Ashurst, to acknowledge the request or provide the requested information (or indeed to refuse to do so).“

Angela Pearson’s response in February 2020:

“Our client is owned by China Taiping Insurance Holdings Co (100% direct ownership) which is itself listed on the Hong Kong Stock Exchange. It is 60% Chinese State owned through the China State Owned Assets Supervision Administration Commission. The remaining 40% is held generally by the public.”

Nothing else needs to be said about how inadequate this response is. Who owns the trustee company Taiping Trustees Limited was not and is not my concern – I want to know who Taiping Trustees may be acting as trustee for. Did the beneficiaries change or not in 2019? Why can’t you answer this basic question? Did you even realise that your client’s investment was designed to be syndicated? 

As a couple of months had passed until this (interim) workaround was achieved, Taiping asked if Sargon and Trimantium Taiping Investment Management could pay the next quarter’s interest at the same time as well as up to the end of the proposed early termination period (agreed to be 31 January 2020 in early November 2019). Given it was already December and they indicated that they would waive any penalty interest for the Q3 payment, this was agreed to and paid in one payment – both the outstanding September 30th payment (which had been held pending an acceptable solution to the lack of beneficiary disclosure) and (in advance) the December 31st and January 31st payments as set out in the Early Termination Agreement. This amount was $4.4 million AUD. 

This was the relevant section (verbatim) from the Early Termination Agreement sent to me on 5 November 2019 that outlined the interest payment (in its composition) for the Q3 (July to September) and Q4 (October to December) payment as well as up to 31st January 2020:

Total Outstanding Interest: HKD$ 23,561,643.84 (Form 2019.7.1 to 2020.1.31)

Breakdown as shown below:

  1. HKD$ 10,082,191.78 (Form 2019.7.1 to 2019.9.30)
  2. HKD$ 10,082,191.78 (Form 2019.10.1 to 2019.12.31)
  3. HKD$ 3,397,260.27 (Form 2020.1.1 to 2020.1.31) (Pro-rata basis, indicative on actual)

At the time, HKD 23,561,643.84 was approx A$4.4 million. 

What happened to the $4.4 million?

The short answer is that I can’t be sure. Reviewing emails, Ashurst’s next correspondence was on 19 December, addressed to me personally, alleging that I had ‘failed to pay interest payments due in full’. They did not address this letter to any of the borrowers under the Promissory Note facility and did not specify which of their clients alleged nonpayment. Taiping Trustees had been paid up by Sargon the previous week; however, Ashurst was simultaneously acting (in yet another overlapping appointment) for a related party of Taiping Trustees in a separate financing agreement that they allege I am personally liable for. That agreement is currently subject to legal action, so I can’t say much other than to confirm I dispute liability and that no interest was outstanding – however, it’s the only facility under which their clients allege I had personal payment obligations like those Ashurst appeared to be referring to in this 19 December letter.

After ignoring my written response, they then sent further letters purporting to be demands in late January, alleging that both the Promissory Note and this separate facility were in default. They did not specify in these letters how they came to such a conclusion, but merely asserted ‘payment was not made in full’. They also did not follow the proper procedure for the service of notices and demands under the various finance and security agreements (or under the Corporations Act). Nearly simultaneously (within half an hour), a representative of their clients (who, you’ll recall, Ashurst told me not to speak directly to), also sent me (unprompted and without any context or covering letter) standstill agreements in relation to the alleged defaults. A separate representative of their clients also advised me that Ashurst’s letters were formalities for ‘audit trail’ purposes and that China Taiping supported Sargon’s ongoing capital raising efforts. Before I had a chance to sift through these volumes of confused and contradictory information (I was on leave, as I suspect was Mr Marshall and possibly also many of their client’s key people – they rushed this through in the midst of both Australia Day and Chinese New Year), intermingling and conflating various different parties and finance facilities, and my attempts to clarify their actual position(s) in relation to each facility, Ashurst advised the appointment of receivers over the obligors of the Promissory Note. 

In fact, at no stage up to the date of this blog post (13 April 2021) have Ashurst or China Taiping stated an open position as to how the alleged outstanding interest was calculated – and as a result, the best conclusion Sargon’s liquidators could come to regarding the payment was as follows:

We understand the A$4.4M payment may have included: 

o Interest on the Corporate Loan, HKD$500M Secured Promissory Note with TIM and [Sargon], which [Sargon] guaranteed; and
o Interest on the Personal Loan, HKD$653M Loan Agreement with Mr Kingston and other related parties.

(Wexted Advisors, Sargon Capital Statutory Report by Liquidator, 22 May 2020, page 13 https://www.wexted.com/wp-content/uploads/2020/03/SAR11-200522-Statutory-Report-WXA.pdf)

As such, it looks like Ashurst ‘may have’ applied part of the A$4.4m towards this other finance facility on behalf of their other client (the web of appointments strikes again). 

Sargon never had any payment obligations under what Wexted referred to as the ‘Personal Loan’. Equally inaccurate (at least as far as China Taiping’s audited records by PwC are concerned) is the statement that there was a “Corporate Loan” between Taiping Trustees and Sargon of HKD500M. The “Personal Loan” was an institutional facility which had many corporate parties, including Trimantium Taiping Investment Management, but Sargon was not one of them, and there was no way Sargon funds (generated from the operating profit of its subsidiaries) could be directed towards a facility it was not a party to and had no obligations under. I certainly did not provide Ashurst with instructions to this effect when authorising the payment. If Wexted were able to establish that (potentially millions of dollars of) Sargon funds intended to discharge Sargon’s interest payment obligations as guarantor were instead redirected to a different offshore company that Sargon owed no money to, such a transaction would clearly be for an improper purpose and would likely be a recoverable transaction in liquidation. It would be untenable for Wexted to form this conclusion as it would result in ~A$2.2 million being clawed-back from China Taiping for the potential benefit of other genuine creditors, as China Taiping were paying Wexted’s invoices (via McGrathNicol). One does not bite the hand that feeds you. Hence, Wexted both as a matter of verifiable fact and commercial “practicality” are required to confirm that the A$4.4 million advanced by Sargon should have been applied by Ashurst only to the Promissory Notes and for no other purpose. Hence, no interest owing and no proper basis for receivership.

During the December 2019 period (and arguably continuing to this day), Ashurst’s Sydney practice was very confused about the various financing structures, in part because they were governed by a combination of agreements, some in English, some in Chinese, some in Australian law, some in Hong Kong law, in part because they were genuinely complex arrangements that had been amended a number of times, and in part because of a general lack of attention to detail.

Effectively, in mixing up clients and matters, it appears Ashurst ‘may have’ (inadvertently or otherwise) misdirected transit money. As a consequence of doing so, it appears they advised Taiping Trustees that the Promissory Note facility remained in default, and further advised them to trigger a ‘bring-forward’ clause on that basis and demand repayment of the full HKD$500,000,000 over a year before it would ordinarily fall due – and then advised them to appoint receivers over both the issuer (Trimantium Taiping Investment Management) and the guarantor (Sargon) on this basis while Sargon was in the middle of a private equity raise that was expected to enable early redemption of China Taiping’s investments within three months (which China Taiping was aware of from 10 January 2020).

Was any money owing to Taiping Trustees Limited by Sargon on the date of receivership appointment?

No. The sum total of interest payments made up to and including the $4.4 million payment in December 2019 meant that, even with the worst possible FX consequences after the payment was made in December 2019 until 31 January 2020 (AUD-HKD), no interest was capable of being outstanding by Trimantium Taiping Investment Management Pty Ltd (or Sargon Capital Pty Ltd) under the Promissory Note facility on 29 January 2020. 

Ashurst’s Web of Conflicts

As a follow-up to this popular post on Ashurst’s conduct around the receivership appointment over Sargon Capital Pty Ltd, I bring the Australian business community’s attention to issues around conflict management and how breaches of client confidentiality by Ashurst might have coloured advice given by Ashurst to China Taiping which led to Sargon’s unnecessary demise. My next post will be on Ashurst’s handling of Sargon’s transit money and likely breach of fiduciary duty. For the eager students, you can get some background in the LEGAL PROFESSION UNIFORM LAW (NSW) – SECT 140.

Let’s start with the solution:

They are seemingly struggling to hire for this role going back to at least June 2020 and it is becoming extremely urgent I can tell you. I commend Ashurst – better late than never – but have a few comments on spelling, perhaps it is the spelling issues which are causing your Sydney-office conflicts team to miss direct conflicts?

We are keen to speak to any candidates with Senior Adviosry (sic) Conflicts and Ethics experience within a legal setting who would be interested in reclocating (sic) form (sic) the UK to Sydney.

https://www.professionalsinlaw.com/job/37767/senior-conflicts-advisor-sydney-/

In the 12 months prior to appointing receivers over Sargon, Ashurst’s Sydney office acted routinely for and around Sargon and her allies. Typically, Ashurst would act on matters relating to financing, capital structure, note issuances and our client’s debt situations in Sargon’s Corporate Trust business. It’s a complex web of appointments, but at a high level this is what was going on:

Ashurst Client in 2019Potential Conflict with SargonConflict Disclosed and Waived
IPO Joint Lead Managers (JLMs)YesYes
Trimantium InsuranceNoNo
The Global BankYesYes
The InvestorYesYes
SargonN/AN/A
China TaipingYesNo

I have kept innocent parties’ names out of this post. The anonymous names (2 JLMs, The Global Bank and The Institutional Investor) are all large credible global businesses and I’m happy to share them should it become relevant.

Twenty Nineteen (2019)

What you see below is an invoice to a wholly-owned subsidiary of Sargon Capital Pty Ltd, fairly obviously associated with Sargon, called Sargon CT Pty Ltd being invoiced by partner Tony Ryan from Ashurst’s Sydney office. Tony Ryan styles himself as being a Partner in the Restructuring, Special Situations and Insolvency team. This may look familiar as it is the same team and office as Mr James Marshall, the Ashurst partner who appointed receivers over Sargon.

Concerningly, it is entirely possible that Ashurst were simultaneously assisting Sargon issue financial products to retail investors whilst advising and implementing the appointment of receivers over Sargon and creating significant risk for those same retail investors.

There are heaps of these Ashurst invoices to Sargon over 2019, this one was particularly poorly timed for them as it appears to be quite a bit after they were acting for China Taiping (in the exact same team and same office without disclosing the conflict).

In fact, the following Ashurst people were involved in the above Sargon-aligned appointments (ex. China Taiping) over 2019 and were provided confidential information regarding Sargon in that capacity (these are the ones known to me through invoices and correspondence with Ashurst at the time; there were likely more involved in the background):

  • James Marshall – Partner, Restructuring, Insolvency and Special Situations, Sydney
  • Tony Ryan – Partner, Restructuring, Insolvency and Special Situations, Sydney
  • Kyle McLachlan – Law Graduate, Restructuring, Insolvency and Special Situations, Sydney
  • Jamie Ng – Global Head of the Finance, Funds and Restructuring division
  • Lisa Simmons – Partner, Corporate Practice, Sydney
  • Rehana Box – Partner, Corporate Practice, Sydney
  • Sarah Dulhunty – Partner, Corporate Practice, Sydney
  • Con Tzerefos – Partner, Corporate Practice, Melbourne
  • Jared Lynch – Senior Associate, Corporate Practice, Melbourne
  • Kevin Lu – Senior Associate, Corporate Practice, Sydney
  • Megan Fung – Lawyer, Corporate Practice, Sydney
  • Steve Smith – Partner, Banking and Finance, Sydney
  • Jack O’Shea – Partner, Banking and Finance, Sydney
  • Elly Ko – Senior Associate, Banking and Finance, Sydney
  • Timon Ibrahim – Senior Associate, Banking and Finance, Sydney
  • Alice Au – Associate, Banking and Finance, Sydney
If you look hard, you’ll notice Ashurst’s Sydney restructuring team in the picture, having the audacity to fish for additional clients at Sargon’s launch event in October 2019, having likely already been appointed to act against it by Taiping.

From May to July 2019, Ashurst’s acted for Trimantium Insurance Partners Pty Ltd (Trimantium Insurance), related to Trimantium Capital Funds Management Pty Ltd and (indirectly) to Sargon and China Taiping by beneficial interest. The appointment was in relation to a prospective insurance venture which was in partnership with Sargon and Taiping (all of which Ashurst should have been aware).

In March 2020, shortly after the receivership appointment, Ashurst’s finance team followed up Trimantium Insurance in relation to an outstanding invoice (which was sent to Sargon’s office address) in respect of the insurance matter. The individuals acting on the matter included Rehana Box, Lisa Simmons, Con Tzerefos and Jared Lynch. This (small) invoice was missed due to an administrative oversight but Ashurst hadn’t followed up (presumably) because it was a very small balance for a strategic group client. I thought it was amusing how bad Ashurst’s conflict systems must be – this email said “Hope this email finds you well today and out of harm’s way”. No, I was not out of your firm’s harm’s way.

Trimantium and Sargon are not common names so you’d expect the conflict processes would notice them pretty quickly. Alas.

From January 2019, Ashurst’s Sydney office was engaged to act for the investment bank syndicate that had been appointed by Sargon as joint lead managers (JLMs) for Sargon’s IPO capital raising process (the JLMs having been appointed in December 2018 for a minimum period of 12 months). Ashurst likely obtained significant confidential and valuable information about Sargon throughout this process, particularly in respect of the capital structure of the company.

From Jan – May 2019, Ashurst also acted with Sargon’s and the JLM’s informed consent for a potential investor into Sargon which was a global banking group headquartered out of London. The deal was paused because the bank had a leadership change and put a pause on expansion initiatives. Sargon, Ashurst and the JLMs were all aware of, and cleared this conflict for the Global Bank.

James Marshall, award winner.

Here’s James Marshall acting for a potential Sargon institutional investor from May 2019. Ashurst sought Sargon’s consent to the appointment (due to their plethora of other roles, which Sargon provided). This was a collaborative investment conversation where James and Steve Smith likely obtained quite a lot of information about Sargon.

I wonder if this investor was ever asked for informed consent before James Marshall took on China Taiping’s retainer and decided to place Sargon into receivership. I know for a fact that this investor was continuing due diligence and structuring negotiations with Sargon while Ashurst was acting for China Taiping, and the investor had never indicated they’d changed lawyers, so for all I know Ashurst had never resigned from this investor’s brief before accepting instructions from a different party to cause an insolvency event on the investor’s prospective investment.

Concurrent client conflicts: 

11.2 If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3.

11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client:

11.3.1 is aware that the solicitor or law practice is also acting for another client; and

11.3.2 has given informed consent to the solicitor or law practice so acting

Australian Solicitors’ Conduct Rules

The crux of the conflict is that there’s no way for a law practice to fulfil their duty to act in the best interests of both clients in circumstances where the clients interests actually or potentially conflict. Even if the conflict is not immediately apparent at the time of appointment (for example, a negotiation between two clients on friendly terms), it may quickly deteriorate. As such, unless the clients are made aware of the conflict, and provide informed consent, a firm cannot act – information barriers alone are not enough. Even with informed consent, the law practice’s ability to act is “subject always to each solicitor discharging their duty to act in the best interests of their client”, and as such it’s practically impossible for a single solicitor within the practice (such as James Marshall) to act for both clients where their interests diverge

Successive client conflicts

Even if Ashurst had resigned from the bank, the institutional investor, Sargon/Sargon CT, Trimantium and JLM appointments, it’s well known that lawyers owe some residual duties to clients – most importantly, centred around preserving their confidential information. 

10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. 

10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS: 

10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or 

10.2.2 an effective information barrier has been established.

Australian Solicitors’ Conduct Rules

It’s unknown to me whether Ashurst obtained informed written consent from all of these clients in 2019 regarding the Taiping appointment, but they certainly did not attempt to do so with respect to their direct engagements with Sargon or Trimantium. In the course of their engagements with Sargon, providing advice and due diligence on structured finance transactions in which Sargon acted as issuer and/or trustee, Ashurst was made intimately familiar with Sargon’s upstream finance and capital structure, in addition to material volumes of other commercially sensitive information.

If Ashurst did in fact resign from all Sargon-related financing and debt capital appointments prior to accepting the Taiping appointment, they would still have needed to establish an effective information barrier. The Law Society of New South Wales sets out comprehensive guidelines to what should be included in an effective information barrier (which they encourage firms to employ as ‘minimum standards’), including:

  1. The existence of documented protocols for setting up and maintaining information barriers.
  2. A nominated compliance officer to oversee each information barrier.
  3. Obtaining acknowledgement in writing from the new client that the law practice’s duty of disclosure to the new client does not extend to any confidential information which may be held by the law practice as a result of earlier matters.
  4. Clearly identifying all ‘screened persons’ (i.e. a person who possesses confidential information from a previous retainer which is relevant to another, current retainer), with the compliance officer keeping a record.
  5. Obtaining undertakings from each screened person that the screened person will not have any involvement with the client or personnel involved with the current matter; has not disclosed and will not disclose any confidential information about the earlier matter to any person other than to a person in accordance with the instructions or consent of the client in the earlier matter, another screened person, or the compliance officer; and will, immediately upon becoming aware of any breach or possible breach of said undertaking, report so to the compliance officer.
  6. Similarly, implementing controls so that personnel involved in the new matter don’t discuss the previous matter with, or seek any relevant confidential information about the earlier matter from, any screened person. Such personnel (on the new matter) should also provide undertakings similar to those made by screened persons. 
  7. Contact between screened persons and personnel on the new matter should be appropriately limited.

The list goes on, but let’s take a pause there. Ashurst, as a ‘leading global law firm’, no doubt has some form of conflict management protocol and information barrier practice in place. After all, they did seek informed consent in the past, and have defended their “usual process” in other circumstances. Let’s consider how it may have been implemented in the current circumstances, starting by considering who would likely to be considered a ‘screened person’. 

James Marshall acted for a potential investor throughout the back half of 2019, in negotiations and due diligence for a prospective investment in Sargon. As far as I’m aware, the engagement had never been terminated prior to accepting instructions from Taiping, but even if I was to give Ashurst the benefit of the doubt and presume they resigned first, this would have been mere weeks before his advising Taiping to appoint Receivers over Sargon, and clearly required either informed consent or an effective information barrier – I imagine most prudent law firms would do both.  

I note, with some concern, that James Marshall’s side-kick, David Greenberg, revealed in the days after the Receivership Appointment (on or around 30th January 2020) to one of my lawyers that he understood that Sargon had $60 million of cash on its balance sheet. In fact, Sargon had closer to $22 million of cash which Ashurst would have known had they read the company’s 1HFY20 financials. This identifiable figure was a relic from the investor’s process (arising out of a modelled pro forma outcome of that investment had it proceeded) and could not have been known to Taiping or McGrathNicol other than through Ashurst. Remember this, it will become very important later 🙂

I ultimately have no idea what (if any) information barrier procedures Ashurst followed, but when an obvious ‘screened person’ in James Marshall is not only not restricted from interacting with the lawyers on the Taiping appointment, but is somehow the partner on the appointment, I really don’t have any confidence in Ashurst having adequately implemented an information barrier. As a practical matter, with so many Ashurst people working for or around Sargon in their Sydney office, I don’t know how you could practically enforce an information barrier even if you put one in place.

Obligations of confidentiality

At this point, it’s fair to ask whether Ashurst simply avoided the need for an information barrier by seeking informed consent from the investor (and everyone else). That seems unlikely – as you’d expect in a financing negotiation, all the information Sargon provided was provided under the strictest of confidentiality, and with the customary legal protections. It’s very difficult to think of a circumstance where the investor would consent to Ashurst acting for a different (hostile) shareholder and providing that investor any benefit from Ashurst’s work for the investor on a purely commercial basis, let alone when factoring in the potential liability exposure such consent could enliven in terms of the investor’s own confidentiality obligations to Sargon. In fact, the investor emerged as a potential bidder in the E&Y sale process (not supported by Ashurst/Taiping) – presumably, with new lawyers. 

Again, even when Ashurst acted for successive non-hostile parties, in the bank and then the investor, it sought consent not only from the bank (and the JLMs), but also Sargon – presumably both to cover off their existing appointments with Sargon CT and other subsidiaries, and also acknowledging that much of the confidential material in their brief was Sargon’s. 

No such consent was sought from Sargon prior to the Taiping appointment – perhaps they wanted to preserve the element of surprise. To be fair, there may be circumstances where seeking informed consent isn’t viable – that’s where a good information barrier can come in handy. James Marshall, as global co-head of Insolvency, Restructuring, and Special Situations, could have presumably handed the Taiping brief off to a different partner in a different office and minimised his contact as per the Information Barrier Guidelines – and should have, given his prior involvement with Sargon (which itself built off confidential information from the bank and the IPO JLMs). Instead, he took personal responsibility for the Taiping retainer. How neither he nor Ashurst’s risk and conflicts management team recognised the issues in doing so is entirely unclear.

More to come.