Delta #EpicFail —Epic Fraud #10 : The Beginning of the End : Grady Cameron and his Steam Shovel

Received from Christchurch Driver [CD]
Sun, 31 Jul 2016 at 1:18 a.m.

Dear Readers

We must give plaudits to Vaughan Elder of the ODT for Saturday’s front page article on Delta’s court action over the Noble Subdivision. Readers should remember that the new CEO of the ODT Grant McKenzie, Mr Elder’s employer, stated in a Council Meeting in February that there was “no relationship” between Gold Band Finance and Delta, and continued to perpetrate that myth in Saturday’s newspaper : Mr McKenzie “stood by comments he made at the council meeting at February”. That is a classic piece of misdirection, in that most people will read it and construe that Mr McKenzie is saying his comments in February were true and accurate, but of course it does not say that —Mr McKenzie has thrown a lifeline to himself so that when the good ship Delta sinks, he can say that he “stood by” his comments in so far as what he knew or had been definitively confirmed to him at the time —or some other carefully concocted excuse that may or may not be true.

But readers, tonight we are not concerned with Mr McKenzie (you can go now Mr McKenzie, we know you read this site….), but the dismal and desperate Mr Grady Cameron. Saturday’s article was very telling in many respects :

Firstly, when Delta thought it had a chance of controlling the issue back in February, it issued a general press release via Gary Dixon and made contact with What if? to deal with alleged “misinformation” that was being perpetrated (mostly by your correspondent). Back then, Mr Graham Crombie, the DCHL chair, was also wheeled out to add gravitas and to try to stabilise the situation, which failed miserably, as your correspondent was happy to predict. See the earlier post Tea & Taxing Questions (6 Mar 2016). It was suggested in that post that Mr Crombie conduct a personal risk register cost/benefit analysis, for any Noble involvement. Mr Crombie has read the tea leaves, and neither him nor any other director are anywhere to be seen. Mr Cameron (Grady) is all on his own.

Let us examine the hole that Grady has dug for himself. Grady is quite clearly not really an earthmoving guy, and has obviously never read the early childhood earthmover’s bible written in 1939 by Virginia Lee Burton, Mike Mulligan and His Steam Shovel : Four corners…neat and square…four walls straight down…We’ve dug so fast and we’ve dug so well that we’ve quite forgotten to leave a way out! —Yes readers, there is no way out, for Grady.

Over a Choysa (No sugar please, it’s late), let us examine some of his statements in Saturday’s ODT.

In a response emailed to the ODT, Mr Cameron disagreed

Well Grady, how about sending out a general press release or an email, as you did in February so that others like What if? who have been on your trail for months, can verify what you are saying is factual, and you are not merely trying to sidestep Mr Elder who is new to the issue.

“We remain fully focused on recovering the outstanding debt owed to Delta from the developer and have securities in place for the amount owing.”

That is a disgraceful misrepresentation of the truth, Grady Cameron, and you know it is. Your DCHL chair Mr Crombie confirmed that the amount owed in March including interest, was over $24M, and you have security for $13.3M. This is beyond doubt because the recent court documents show you were willing to allow Gold Band to sell the mortgage for $16M, which included your second mortgage interest of $5M. This meant after Gold Band was paid its –current– share of the 32.5% of the First Mortgage, Delta would receive $13M. Mr Crombie also confirms you are not telling the truth because he said in the ODT (23 Feb 2016) that Delta would have to write off millions, but not to worry, it was only interest and it was “horrendous”.

The mortgagee sale was being conducted by Gold Band Finance, not Delta, he said.

Grady, with this statement you are not fit to remain as CEO any longer. Your disdain for the collective intelligence of Ratepayers is clearly in the gutter. You –Delta!, dictate what Gold Band can and cannot do. See the earlier post #EpicFail —Noble Subdivision: Cameron, Crombie and McKenzie (24 Feb 2016). Grady, you spent $3.39M on a very likely illegal 67.50% share of the Gold Band first mortgage so you could dictate to Gold Band what they can and can’t do, and you have promised to pay all their costs, “legal or otherwise”. You have already dictated to Gold Band that they cannot sell the first mortgage to the other landowners, who offered to buy it. This is confirmed in Gold Band emails in court documents.

How about answering these questions Grady :

When purchasing the partial first mortgage amounts, what interest rate did Delta have to pay for the first mortgage amounts ?

Was it 22.50% compounding, or a figure close to that? If Delta has to pay 22.50% interest, why do you think it is appropriate for Ratepayers to receive no interest on the $13M approx. of core debt that has been outstanding for six years ?

It (Delta) had not been involved in any unethical behaviour

We could have hours of entertainment with this one, but gravitas and the impending council meeting this Monday mean we must play it straight.

Grady, that is another disgusting fabrication.

Did you allow the ENTIRE SUBDIVISION WORK COMPLETED BY DELTA AT THE NOBLE SUBDIVISION to be completed NOT to the CCC CONSENT DRAWINGS AND SPECS, but to radically different specifications, with roadways that were 8 METRES NARROWER than the CCC Consent Requirements ?

Did this continue for AT LEAST 18 MONTHS from late 2009 to mid 2011 ?

Is it normal for Delta to ignore the local authority consent conditions for projects and simply suit themselves and their clients ?

If not, how on earth could you consider it “ethical” on this project ?

Did Delta install stormwater systems at the subdivision that were undersized to cater for the neighbours’ land, but continue to assure them that their interests were being catered for ?

Do you consider that actively trying to defeat “known prior interests in the land”, that were specified very clearly in the sale and purchase agreements for the land that the subdivision was being built upon, ethical behaviour ?

Do you think that attempting to have your $5M second mortgage, that was registered after various caveats were registered, paid ahead of the caveated interests is ethical ?

Do you say the following -extracted from the post Epic Fraud #5 – Delta and the ghostly hand of Tom Kain (12 Jul 2016)- shows ethical behaviour ?

Mr Smillie (Delta’s lawyer) in an email of 11 February 2011 sets out step by step how the deception will work :

1. NIL granting a registered mortgage to Delta.
2. Philpott etc consenting to registration of the mortgage but the caveat remains in place ahead of Delta’s mortgage.
3. Gold Band agrees to Delta having 1st priority
4. Gold Band agrees to hold its 1st registered mortgage on lot 19 on trust for Delta (To allow sale / enforcement by Delta if necessary so as to avoid caveat issues

Mr Smillie concludes by stating “while not ideal that seems to be as close as we can get to a 1st registered mortgage position for Delta given the caveat issue”.

If you consider it ethical, what would it take for you to find there was unethical behaviour —murder ?

Are you willing to state categorically that you will resign if any of these allegations are true ?

tried several times to find a solution […] on the neighbouring land.

Grady, did any of these solutions involve actually working with the neighbours, or merely trying to deceive and cheat them of their prior known interests.

Provide email evidence of any assertion that you sought to satisfy their interests.

If you allegedly ‘tried to find a solution’ why was it necessary to go about a constructive fraud, designed by Mr Smillie, as noted above to defeat their caveats.

He denied Delta’s actions over Yaldhurst had been reckless.

Grady, if Delta has not been “reckless” then by your lights, Delta has acted with some degree of prudence.
Let us back the truck up here.
You, personally, approved Delta’s involvement in this subdivision, in 2009, with full knowledge of the following :

a) The land was in fact not even owned by the Developer NIL, but in a complicated buy-back scenario with a lot of obligations to the landowners.
b) Has a third (or fourth) tier finance company, Gold Band Finance, as first mortgagee (because the banks would not lend on it).
c) The first mortgage loan amount was only $1.75M, it was fully drawn down, and the finance company Gold Band had NO ABILITY to advance any further funds to pay for Delta’s work.
d) No other second mortgage funding was in place to allow Delta to be paid.
e) The Developer NIL had no capacity at all to make payments to Delta from its own resources.
f) The Developer and Owners, Apple Fields and NIL, were well known commercial hazards and aggressive litigants.
g) The subdivision has 33KV overhead powerlines running through it, and has limited market appeal.
h) Delta would not be paid until the most or all of the sections were sold and paid for, and the industry at the time would have forecast around a two-year sell down period.

In other words, you approved $11M of work, in a dodgy subdivision project, that had no chance of ANY meaningful repayment, for at least three to four years, on the absolute best case scenario, until the sections were sold.

Grady, if you consider this NOT to be reckless commercial behaviour for a Ratepayer owned company, you need to be sacked, now.

Readers, in conclusion, even in our children’s story, ‘Mike Mulligan’, there were consequences for non–performance. Grady, it looks as if the Delta Directors and DCHL have left you, and you are, indeed…. the weakest link, and expendable. Just like Mary-Anne, the steam shovel, along will come new management, just like the new diesel shovels, and electric shovels that made Mary-Anne redundant. There will be NO MORE WORK for you, and just like Mary-Anne, you will be GONE. “They left the canals, and the railroads, and the highways, and the airports, and the big cities, where no one wanted them any more….. and went away.”

Readers, if you have the patience, the best primer for the sorry saga is found in the first post Delta #EpicFail —Epic Fraud (5 Mar 2016).

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Images: [lessons in creative destruction, a shocked Mary-Anne] Illustrations from Mike Mulligan and His Steam Shovel (1939), a book by Virginia Lee Burton – blog.acton.org | childrensbooksguide.com | blog.acton.org

Delta #EpicFail —Epic Fraud #9 : The Long & Winding Road…. Leads Back to Delta’s Door

Updated post – emails added below
Fri, 29 Jul 2016 at 2:20 p.m.

—

Received from Christchurch Driver [CD]
Fri, 29 Jul 2016 at 2:01 a.m.

Dear Readers

It has been a week of action around the ill-fated Noble Subdivision. Fill the teapot and hang on to your hat…er, tea cosy.

The week started with what appeared to be a lucky break for Delta. Judge Osborne, inexplicably, and against the predictions of your correspondent, found in favour of Delta. (Actually Gold Band, but we all now know of course that Delta have a very special relationship with Gold Band that involves whips and chains of a sort, and even legal blindfolds —Delta most definitely wear the security sharing trousers). Judge Osborne will not allow a stay on the mortgagee sale, which allows the property to be sold ahead of the Court of Appeal case where the landowners will set out their case that Delta have engaged in constructive fraud.

Your correspondent will return to the many, many puzzling aspects of the decision in a future post, but first the breaking news :

Any comfort Mr Smillie, Mr Cameron, and the assorted Delta hangers on directors and executives may have felt will be very short lived as it turns out that this defeat is actually a Good Thing as far as the plaintiffs are concerned. It means that instead of pursuing a small finance company (with its strings being pulled by Delta), Delta and the DCC are now the primary target. Further, now that the losses to the landowners are crystallised if the sale proceeds, which is the avowed intention of Gold Band, the claims may well be much bigger.

The “legal” explanation is as follows…. It’s musical chairs – the last man/entity standing at the end of the day cops the lot.

A similar example that has cost councils large sums, including our DCC, are claims for leaky buildings : The vast majority of claims are against the local authorities who merely inspected the work, they did not build it or design it – but when the developer doesn’t exist, the architect and builders have “re-structured” to prevent claims, and the painter, plasterer and roofer have no money, then councils get landed with the claims. The QLDC have a never ending series of these sorts of claims and they mostly involve millions. (They have at least two on at present).

Tonight, all DCC Councillors received an email from the landowners explaining that yes, the DCC and Delta are going to be taken to Court for the constructive fraud, and giving several examples of the constructive fraud. They then set out the small matter of the approximate $14-17million loss that Delta have already advised the Council they expect to lose – and why this doesn’t have to be the case. There is pain from both sides of this financial double-edged sword – the expected loss, and the court action. However, far from being Noble-like aggressive litigants, the landowners have proposed that the DCC works with them to maximise their return.

The email is reproduced below.

The logic appears compelling – but what Councillors, other than Vandervis and Calvert, have the character and integrity to get to the bottom of the matter, and acknowledge that there have been some illegal acts committed at Noble by Delta and its agents. Perhaps Cr Peat could do something useful or even visible as his parting gift to the city, because his self-serving valedictory address in the ODT recently was the first time Dunedin Ratepayers had actually heard of him.

What Councillors have the intestinal fortitude to look the sorry band of Delta and DCHL Directors in the eye and say to them— “If any of the allegations in this email are true then you have no business or future with ANY DCC or associated entity and we expect your resignation in the morning ?”  

If your correspondent sounds disgruntled, he is : It is election season, and there are no votes to be had in this matter. Vague platitudes (the preferred modus operandi of many Councillors) are also of no help. Are our Councillors going to shrug off an attack of the turnips and do something ?

What price and what probability, is there for integrity here, readers ?

—

[click to enlarge]

Attachment: 2016 07 28 s102 Stokes Smith Gold Band_Delta_DCC

****

Additional emails received today:

Attachment: Fourth amended statement of claim joining GB and Delta

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Truthful Letters : Stadium + DCC #toobadaboutmayoralreply

ODT 27.7.16 (page 12)

[click to enlarge]

—

DEPLORABLE MULTIPLIERS [what more do we need ?]

The god awful millstone stadium is due to have its 5th birthday soon – ODT will be saturated, note bilge leaking into the Op-ed pages, already.

WE ONLY CARE ABOUT . . . .
THE UNMITIGATED UNPRINCIPLED FLOW OF RATEPAYER MONEY AT +$20MILLION PA to subsidise the Stadium, DVML/DVL, Professional Rugby and Grey Hair Events —meanwhile draining council owned company Aurora Energy of development capital sufficient to satisfy the regulator of lines companies, the Commerce Commission.

It is wrong. Criminal. (metaphorically!)

****

### dunedintv.co.nz Wed, 27 Jul 2016
Your word on local body elections
The Dunedin City Council is set to have some fresh blood in its midst with five current councillors confirming they won’t seek re-election. Many of those not standing have cited the large workload and increasing bureaucracy as a job deterrent. With that in mind our Word on the Street team asked the public whether they care about the upcoming local body elections.
Ch39 Link

Channel 39 Published on Jul 26, 2016

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Gerrard Eckhoff does us All a favour

Updated post
Wed, 27 Jul 2016 at 10:07 p.m.

The Dunedin City Council’s decision to develop a rates remission policy to take into account the special relationship Maori have with the land is interesting, writes Gerrard Eckhoff.

### ODT Online Wed, 27 Jul 2016
DCC rates policy may be unfair to Pakeha landowners
OPINION All Dunedin City Council ratepayers will, I’m sure, be sympathetic yet intrigued to understand the principle the council has employed that allows for rates remission for Maori freehold land and not producing revenue (ODT, 19.7.16). It is a policy that will be embraced by most, if not all, ratepayers, as it sets a wonderful precedent. Cr Hilary Calvert sensibly noted DCC staff should develop policy which included non-Maori land as well for consideration.
Read more

● Gerrard Eckhoff, of Central Otago, is an Otago regional councillor.

—

DCC Rates history
The table and graph [go to the webpage] show the comparison between inflation and Dunedin City Council rate increases over the past couple of decades. For the first two years, the changes which followed local body amalgamation in 1989 mean it has not been possible to accurately calculate the DCC rates increase figure. Major upgrades in the areas of water and wastewater, and significant building projects, have had a big effect on DCC rates rises over the period.
█ http://www.dunedin.govt.nz/services/rates-information/rates-history

—

Received from Mike

This graph is a cumulative graph of DCC rates rises after inflation has been removed, graphed over the same range that the DCC graph is, with this year’s data added (and a couple of mistakes in the DCC’s inflation rate touched up to.match the Reserve Bank’s, they are minor, and mostly cancel out).

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Labour messing with South Dunedin, like Cull, unbidden

Not Listening [octavehighereast.com]

—

There is little or no RISING GROUNDWATER at South Dunedin – this is an attack on the local community by Anthropogenic Global Warming (manmade climate change) believers like Curran, Clark, and Cull.

So-called ‘authorities’ are running their Politics over the top of the local Community, Failing to canvass the views of the local residents, property owners, service providers and businesses through agreed consultation methods Before pronouncing upon the area. This is disrespectful, dangerous behaviour. Unwarranted.

A lot of us will remember Labour MP David Clark’s importune speech on climate change at the public meeting held at South Dunedin on 20 June. He completely didn’t register the mood and understandings of the local audience.

Greenie Cull and the Labour Party are deliberately or inadvertently using South Dunedin as a Political Football. There are few votes to be earned from bullying and interference, thank god.

Listening —what is that.

—

Speaking after the tour, Mr Little said the area was a “prime candidate” for urban renewal under the party’s proposed Affordable Housing Authority.

### ODT Online Tue, 26 Jul 2016
Labour timeline for South renewal
By Timothy Brown
South Dunedin’s renewal will be showing “good progress” within six years of electing a Labour government, party leader Andrew Little says. Mr Little toured South Dunedin with Dunedin Mayor Dave Cull, Dunedin South MP Clare Curran, Dunedin North MP Dr David Clark and list MP David Parker after the area was earmarked by the Opposition as one urgently needing urban renewal. The group walked from Bathgate Park School, in Macandrew Rd, down Loyalty St into Nicholson St and on to Nelson St before returning to the school. They were accompanied by members of various social groups from South Dunedin.
Read more

****

### Dunedintv.co.nz Mon, 25 July 2016
Labour leader tours South Dunedin
Labour Leader Andrew Little has visited South Dunedin today, alongside a contingent of MPs and social service agency stakeholders. The group wandered around the areas hardest hit by last year’s floods, looking at the handful of houses still empty more than a year on. And Little took the opportunity to offer up his party’s plan to fix some of the issues.
Ch39 Link

Channel 39 Published on Jul 24, 2016
Labour leader tours South Dunedin

—

DUNEDIN – JUNKET CITY FOR LGNZ
“How do we Efficiently capture NZ Ratepayers’ Money for our Comfy Salaries”

### Dunedintv.co.nz Mon, 25 July 2016
Local government conference kicks off
The country’s annual Local Government conference is back in Dunedin for the first time in almost a decade. More than 560 delegates have piled into the Town Hall to discuss how to make New Zealand a better place to live and work. But it’s also serving as a way to address the tension between local and central governments.
Ch39 Video

LAWRENCE YULE GO HOME

█ For more, enter the terms *flood*, *sea level rise*, *stormwater*, *hazard*, *johnstone*, *hendry*, *south dunedin action group*, *debriefing notes*, *listener* or *lgnz* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Images: mrhudyma.com – Listening | linkedin.com – Larry King, Listen

Calder Stewart pay up #Carisbrook

What will Dave and the greenies spend this loot on ?

ODT 23.7.16 (page 6)

Link: http://www.odt.co.nz/news/dunedin/391281/dcc-paid-31-million-carisbrook-sale

█ For more, enter the terms *carisbrook* or *orfu* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Mosley’s Pond now a Dunedin Community ‘asset’ to fund

Taieri Times 13.7.16 (page 1)

Taieri Times 20.7.16 (page 8)

Taieri Times 20.7.16 (page 7)

Epitaph. Prudence said she couldn’t swim in the DCC pool at Mosgiel, nor Moana, they both drowned.

—

Related Posts and Comments:
● 26.11.15 DCC report: Mosgiel Pool Future Aquatic Provision
● 16.9.15 DCC Please Explain —Mosgiel pool design to Warren & Mahoney
● 10.9.15 Tale of two pools … #Mosgiel #Wanaka
● 7.8.15 MOU DCC and TCFT New Aquatic Facility #MosgielPool
● 24.7.15 Hands off Mosgiel Memorial Gardens
● 23.7.15 Dunedin ratepayers —Green Island best site for city pool users…
● 22.7.15 DCC Long Term Plan 2015/16 – 2024/25
● 19.5.15 Mosgiel pool trust conflicts of interest #bigfishsmallpond
18.5.15 NEWSFLASH —Mosgiel pool, tracking [PONT] . . . .
17.5.15 Cr Vandervis on DCC project budgets
● 4.5.15 DCC: Draft LTP matter —‘Unfunded Mosgiel Aquatic Facilities’
● 7.5.15 DCC Draft LTP 2015/16-2024/25 —public submissions online
● 12.4.15 Mosgiel pool trust calls on Dunedin ratepayers to fund distant complex
1.4.15 ‘Pooling Together’ (TCFT) loses chairman, resigns [see Wanaka pool]
28.3.15 DCC Draft LTP 2015/16 to 2024/25 —CONSULTATION OPEN
25.3.15 DCC Long Term Plan: Green-dyed chickens home to roost
11.3.15 Mosgiel pool trust PLAINLY hasn’t got ‘$7.5M community support’
● 6.3.15 Propaganda from trust for Taieri pool project #Mosgiel
● 2.3.15 DCC: Mosgiel Pool private workshop Tuesday (tomorrow) [renders]
● 20.2.15 Taieri Aquatic Centre: 2nd try for SECRET meeting —hosted by Mayor
● 13.2.15 ‘Taieri Aquatic Centre’, email from M. Stedman via B. Feather
● 10.2.15 Dunedin City Councillors invited to Secret Meeting #Mosgiel
14.1.15 DCC Draft Long Term Plan: more inanity from Cull’s crew pending
11.10.14 New Mosgiel Pool trust declared —(ready to r**t)
23.7.14 Mosgiel Pool: Taieri Times, ODT…. mmm #mates
16.7.14 Stadium: Exploiting CST model for new Mosgiel Pool #GOBs
● 4.2.14 DCC: Mosgiel Pool, closed-door parallels with stadium project…
30.1.14 DCC broke → More PPPs to line private pockets and stuff ratepayers
20.1.14 DCC Draft Annual Plan 2014/15 [see this comment & ff]
16.11.13 Community board (Mosgiel-Taieri) clandestine meetings
25.1.12 Waipori Fund – inane thinkings from a councillor
19.5.10 DScene – Public libraries, Hillside Workshops, stadium, pools
12.4.10 High-performance training pool at stadium?

—

Posted by Elizabeth Kerr

Election year. This post is offered in the public interest.

*Images: shortzilla.com – duck in pond | dadvmom.com – blacknwhiteswim

Not a bicycle accident, not a burst water main —sugar!

Thu, 21 Jul 2016
DCC Webmap – cnr Stuart and Bath Sts [what happened there]

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Cycleway planning at #DUD

T R U E ● O R ● F A L S E

First we heard there were resignations via ODT.

http://www.odt.co.nz/news/dunedin/389654/fourth-high-profile-transport-department-resignation

Although some might be working out notice.

Online identities and job titles suggest people are still at DCC.

Simple. Not updated at LinkedIn possibly.

What’s your point ?!

“THE SUBSEQUENT NEWS” …. [pregnant pause]

The (friends ?)(professionals ?) have set up in the land of private enterprise.

Good for them.

But wait.

Someone has snaffled new cycleway planning and project management off DCC.

Noooo ! What ?

We thought we heard via SPOKES….. that “they” (the privateers) have ‘won’ (??) er, DCC’s new cycleway planning contracts to STUFF Dunedin roads.

Surely, they’d have had to go through an open tender process ?

Mmm. That remains to be seen.

Our Rates Money will go straight to the NOW Private Contractors in larger amounts probably.

Nah, don’t believe it. Can’t be True.

*Preferred Suppliers*—
Some Councillors know, some don’t.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Image: glendalecycles.com – Bob Lafay 12/03

Delta EpicFail #8 : Cr Calvert goes AWOL, 23 Questions for Mr McKenzie —Saddlebags !!

Received from Christchurch Driver [CD]
Thu, 21 Jul 2016 at 1:11 a.m.

Readers, we must observe a minute’s silence for Councillor Calvert, who will be greatly missed. Councillor Calvert was one of few – very few – willing to shake off the soporific torpor afflicting so many of the elected representatives, ask penetrating questions, and not follow the herd. Some other Councillors think that simpering naivety is a fetching and winning look (and not just limited to one particular female councillor), but on the very few times your correspondent has been able to withstand viewing parts of a council meeting, he had a heaving feeling and it wasn’t stale milk in the Choysa.

Ms Calvert did make some missteps in her term, and the Court of Appeal judgement in relation to the James Queenstown Development undoubtedly might have affected her confidence to run, but this correspondent says, all is forgiven Hilary, the city needs you. A suggestion : Why not just go all out and stand for Mayor on the premise that you have done your time as Councillor and got treated like a mushroom by Mayor Cull et al, so you now know that to achieve reform in the city of Dunedin, you need to be at the top, and nothing else will do. That would be a powerful message and it would resonate with many. Please consider it. Readers, please post your support to show Cr Calvert there is a mayoral Calvert constituency – offers of assistance also appreciated !!

So the DCC has refused to answer Cr Calvert’s questions in relation to Delta. Instead, Mr McKenzie, “has been asked to contact” Cr Calvert. It is not recorded by the DCC if Mr McKenzie agreed to do this, or alternately, had been instructed to, ie couldn’t refuse to. Bureaucrats !!

But Mr McKenzie wants to hold a “workshop” with councillors on this issue. We can be so very very sure that without the efforts of What if? this workshop would never have seen the light of day. Your correspondent says this workshop is the first of the plaintive cries of ignorance and fast & furious duckshoving predicted in the EpicFail #6 post. What is not needed is some vague platitudes from the departing Mr McKenzie, who now has no stake or future in the DCC, but some evidence and history of the issue in writing, that can be considered by the people footing the bill, ie us. And there had better be something comprehensive and truthful – in writing, or the Ombudsman (who is already watching the DCC for its appalling LGOIMA performance on other matters) will be involved.

To this end, your ever helpful correspondent has prepared some additional questions for Mr McKenzie’s workshop in addition to Cr Calvert’s questions, that all ratepayers will be VERY interested to know the responses to. Councillors, feel free to pick and run with as many as you like. Goodness knows, even Mr Vaughan Elder of the ODT may want to pursue some : Breaking news is that the ODT is sick of being pummelled by What if? on this issue (and others) and has assigned Mr Elder to pursue the Delta / Noble story. Welcome to the party Mr Elder, good to have you aboard, unless you get captured by the DCHL / Delta party line that is, in which case you will receive no mercy from this correspondent.

Questions for Mr McKenzie (No, not you Graham, Grady and Delta directors…. but it’s coming….)

1. Do you agree that as DCC Group Chief Financial Officer (GCFO), you must answer all questions truthfully and disclose all material facts known in relation to issues you are reporting or advising on ?

2. When did you become aware of the partial assignment security sharing deeds with Gold Band Finance and Avanti Finance ?

3. Have you read the above documents ?

4. If you have read the documents, have you ever in your career seen a document with the same sort of provisions, and if not, did this create any alarm to you ?

5. If the document was not one you had ever experienced before, as the GCFO of the DCC, did you seek a further opinion on the legality or enforceability of the document ?

6. If you had read the document, why did you say that there is no relationship between Gold Band and Delta when this is demonstrably not true ?

7. If you had read the document, why did you say that the actions of Gold Band are “out of our control” when this is demonstrably not true ?

8. If you hadn’t read the document, how could you accurately say what sort of relationship there was between Gold Band and Delta ?

9. Did someone else advise you of this, and if so, who was it ?

10. Was pressure from the Mayor, Delta Management or Directors, or DCHL Directors brought to bear on you to say that there was no relationship between Delta and Gold Band ?

11. Do you consider the current court action, which is being paid for by Delta, a prudent use of ratepayer owned funds ?

12. How much has been spent on legal and staff costs on the current, ongoing court cases ?

13. If the document, ie partial security sharing deed that is the subject of the current court action is found by the Court to be illegal, do you think it is appropriate for the CEO and Directors who have allowed this happen and who were in place at the time the document was prepared, approved and signed, to remain in their positions ?

14. If the document is found to be illegal, what is your plan of action you will recommend to Delta/ DCHL/ DCC ?

15. If the document is found to be illegal, will you recommend to Delta/ DCHL/ DCC that legal action be taken against the law firm that prepared the agreement ?

16. Have you been advised in any way informally or formally, of any proposed Delta or DCC or DCHL involvement in the entity that is purchasing the land at the Noble Subdivision mortgagee sale ? And when were you made aware of it ?

17. If yes, precisely what information has been disclosed to Councillors ?

18. If nothing has been disclosed to councillors, why not ?

19. What amount of funding is proposed for this “involvement” and where will it come from ?

20. Is there any limit to further funds being committed to this proposal, if as often happens, budgets and timeframes are exceeded ?

21. As GCFO, do you think it is appropriate that Delta should have spent $3.39M on a questionable at best partial assignment when it’s five-year profit average is $2.6M ?

22. If you were the Delta CEO, would you have done this ?

23. Do you consider that the Management and Directors of Delta have acted ethically and within the law, and in a manner appropriate for a ratepayer owned company during your tenure at the DCC ?

?

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

City Council not the healthy democracy we crave #Delta

We have lost more than one useful community-orientated local body politician to the bullying green sludge running this council. No one quitting the council table these last weeks has been exactly forthright about that, until now. Each has been raising points in common with Councillor Calvert, privately and publicly, in their own way.

Over the last 18 months in particular, Councillor Calvert has been on her game with work and enquiry, and yes, regrettably, only a small part of which can be shown via recorded council meetings; but that says more about Mayor Cull’s chairing and questionable efforts at maintaining political control – as Councillor Vandervis will attest.

Indeed, most of council politics presents behind scenes in non public, but also Covertly as ‘Politics’ has always done —except this time, the public beneficiaries of the fabrication and obfuscation are increasingly irate with not only the dangling Mayoral Chain but also his rather awful menagerie of toothy accomplices and mouldy sidekicks.

The lack of public faith in these numbskulls has brought on a seething concentration of ill will, exasperation and litigious-minded wrath such that Anything could happen, and may, before and after the October elections. Typically, for Dunedin, this goes somewhat understated. But it is real, not imagined. Presbyterian attendance to the cost of unbridled war is uppermost…. until the last ganglion strains and bursts.

With the problems besetting South Dunedin caused by DCC and ORC lamebrains…. there has never been a more Simple time to gain a Strong Majority of sincere and principled elected representatives willing to work hard for the whole of Dunedin City. Cull is eroding public confidence. Walk right over the top of him and the greenies – for Our better future.

Last word: Hilary Calvert, please stand for the Mayoralty and the Council in the 2016 elections.

—

The big issues for ratepayers – cycleways, fraud, what council-owned companies were doing, and maintenance of mud-tanks – were “never on the agenda of council meetings until a rearguard action happens after the problems are identified by others”. –Cr Hilary Calvert

### ODT Online Wed, 20 Jul 2016
Disillusioned with council
By David Loughrey
Dunedin city councillor Hilary Calvert announced yesterday she will not stand in this year’s elections, but not before taking parting shots at some of her colleagues and Mayor Dave Cull. […] She said she was unable to make a difference in a council dominated by councillors “whose focus is on carrying out activities for the benefit of the planet and on advising central government on how they may go about their business, not ours. This preoccupation has been at the expense of the proper and transparent governance of the city.”
Read more

****

Received.
Wed, 20 Jul 2016 at 8:32 a.m.

The following was forwarded to me by a city councillor. I subsequently obtained Cr Calvert’s permission to publish.

—— Forwarded Message
From: [Dunedin City Council]
Date: Mon, 18 Jul 2016 23:39:51 +0000
To: “Council 2013-2016 (Elected Members)”
Cc: [DCC Comms]
Subject: FW: Response to LGOIMA request attached

Dear Councillors,
For your information please find attached a response to a LGOIMA request made by Cr Calvert related to Delta and Gold Band.

[Dunedin City Council]

—

[attachment – click to enlarge]

*Names removed by whatifdunedin

Note: Ask strong clear questions when using LGOIMA to access information held by the councils.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Bleeding hearts of ODT #DeathofaCitybyCull

F R I G G I N G ● P O P P Y C O C K ● I N ● E L E C T I O N ● Y E A R

a rudimentary discourse

### ODT Online Mon, 18 Jul 2016
Editorial: Dunedin’s growing contentment
OPINION It is time to consign Dunedin’s habitual discontent to history…. Link
[IF YOU MEAN IT – STOP SUPPORTING MAYOR CULL]

OPINION For a time our weather, isolation, strong links to the supposedly dour Scots and misery at our falling fortunes served as excuses….
[IF YOU MEAN IT – VOTE OUT CULL]

OPINION The University of Otago’s success in many ways saved the city yet, ironically, helped solidify its bleak reputation as students from around the country were met by old, cold and damp houses in a city down on luck and struggling to rediscover its place in the world.
[MAYOR OF DUNEDIN NO LONGER SITS ON UNIVERSITY COUNCIL]

OPINION This time the stories are all positive. […] And why wouldn’t they be?
[PSST. CULL’S COUNCIL DROWNS SOUTH DUNEDIN JUNE 2015]

OPINION The city boasts extraordinary infrastructure….
[DAMAGES TO SOUTH DUNEDIN, YEARS OF BLOCKED DRAINS TENS OF MILLIONS OF DOLLARS LATER]

OPINION No other city in the country has anything to rival Forsyth Barr Stadium….
[53,000 AGING RATEPAYERS, DESCENDENTS AND NEWCOMERS PAYING OFF DCC CONSOLIDATED DEBT FOREVER]

OPINION At the same time Auckland’s famed sunny summers have been accompanied in recent years by concerns around swarms of houseflies, jellyfish, sea lice and mosquitoes, nuisances unheard of here.
[GET FREAKING REAL, TAKEN LEAVE OF YOUR SENSES ?]

OPINION The current upsurge for Dunedin may not be a boom of mythical proportion with gold ingots springing from the soil.
[VERY NEARLY IS, MYTHICAL AND DREAR WHILE CULL WEARS CHAIN]

—Trite and tarnished, tissue of UNtruths.
SMITH BROS : HELP VOTE CULL OUT

Deceits and Dementia at Dunedin, anyone ?

#DUD

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Misero-mercenary at U of O

Just in, Rhodes says:

Naylor Love stiffed by U of O.
$100M Dental School to be awarded to Leighs Construction.

But…
Naylor Love’s consolation prize is the new $18M Otago Polytechnic Hall of Residence, where they were significantly more expensive than other local rival Amalgamated Builders, but scored much higher on non-price attributes, which gave them top ranking.

Amalgamated Builders, clearly not flavour of the month at either Polytech or University —it’s understood the same thing occurred at the recent Commerce Building Upgrade.

—

Related Post and Comments:
1.7.16 No one wants to work for U of O
31.5.13 University of Otago development plans

For more enter the term *university*, *campus master plan*, *property services*, *leith flood protection* or *landscaping* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Delta #EpicFail —Epic Fraud #7 : The Long & Winding Back Road

Delta, dirt road west at night….

—

Received from Christchurch Driver [CD]
Sun, 17 Jul 2016 at 5:08 p.m.

Readers, tonight a post to keep things brewing, but please take that ridiculous tea cosy off your head, put it back on the teapot where it belongs – who do you think you are – Peter Tosh ? !

Firstly, Friday’s riddle and the background on the $3.39M; Mr Crombie proudly declaimed to Dunedin recently that by spending $3.39M of actual cash from Delta’s fast disappearing reserves to buy part of the Gold Band first mortgage, they will receive around $5.1M of the first mortgage debt, which means they THINK they have $1.7M of extra security for their very large core debt. This extra $1.7M is because Mr Crombie is ignoring the 22.50% interest on the $3.39M, ie there is no actual extra security, just Delta forgoing interest, which the other co-holders of the first mortgage are certainly not forgoing. Before we move on, readers should remember that Delta’s average annual profit over the last five years was just $2.6M, and so Mr Crombie and Co have just gambled the entire proceeds of more than an entire year’s profit on this venture, which is far from certain given the ongoing court cases about prior interest in the land. Readers may also want to bear in mind that Delta and the DCHL are in such terrible shape that they will not be paying a dividend to Council to defray rates rises over the next three years, a fact that Mayor Cull is desperate to hide from the public of Dunedin and thus far, the ODT are doing a very good job of assisting him in this endeavour.

In other words, the only beneficiaries of the $100M of work that Delta performed last year were the 70 Delta seat warmers who earned over $100,000 per year, and the Directors, who others, more unkind than your correspondent, have described as unrepentant troughers. Yes, readers, Delta is a corporate welfare scheme, providing a zero return to the ratepayers and is going to remain that way for the next two to three years. We know this because Ms Bidrose and Mr McKenzie explained that is why the city must retain Delta in their recent report on the DCHL companies, so it must be true.

Now as readers of Epic Fraud posts #3 – #6 will know, it is looking very (very) likely that DCHL, Delta and their lawyer Mr Smillie are going to get a comprehensive pasting in Court, the odds being they will be found to have not merely been a party to, but in fact have orchestrated a constructive fraud to ‘cheat a man of a known interest’ and openly flouted the provisions of the Property Law Act.

So what are the consequences of this ?

At the recent High Court hearing, Osborne J asked both Gold Band’s lawyer and the plaintiffs’ lawyer what it would mean if the first mortgage was unable to be partially assigned because the Property Law Act did not permit it.

Neither lawyer had an answer.

Subsequently, one set of lawyers has researched if there is any case law on the issue of partial assignments, and there apparently is not a one, which lends considerable weight to the argument that it is, as it says in the Act, not possible, ie illegal. Osborne J then said he would read up on the Property Law Act, and said that “maybe it meant that everything had to be wound back to before there were any partial assignments” or words to that effect.

Your correspondent would dearly love Mr Crombie (at a pinch, even Mr McKerracher would do) to explain what they think this will mean but, readers, you can guarantee a deathly silence, punctuated only by the sound of frenetic footsteps as there is a mad race to not be the one left standing, facing the inquisition following the court judgement.

Mr Smillie, Delta’s lawyer who cooked up the partial assignment, must be feeling a little anxious? (terrified?) at present. What a contrast to those heady days of early 2011, where it seemed he was on a tear, having schooled that old school crustacean Jim Keegan on the Property Law Act. He probably had a crack at actually walking on water that year, seemingly having pulled off the legal equivalent with the partial assignment. Alas, it appears to be a Febezzle, or “functionally equivalent bezzelment”, as defined by Charlie Munger, Warren Buffet’s cohort. This is where both parties feel wealthy, until the deception is revealed, but in fact it was Gold Band and Avanti doing the bezzeling, not the hapless Mr Smillie and Delta.

Here is what your correspondent thinks is the awful truth : If the first mortgage was “wound back” to pre April 2010, because Delta’s partial assignment was illegal, Delta may lose all of the $3.39M. It is no different than someone who has bought stolen goods and did not have the proof of ownership.

Grady, Graham, and Delta Directors, read this slowly and carefully – say the words out loud if it helps :

1. “An agreement for an illegal partnership will not be specifically enforced even though partly performed, nor can damages be recovered for a breach of it, and if the whole purpose of the partnership is illegal, the court will not recognise it, or enforce any right which the partners would otherwise have, especially when the parties have agreed to enter, as partners, into a transaction, which they knew to be illegal”

Let’s break this down for the Delta turnips :

a) Illegal partnership – check !
b) Partly performed – double check ! —Delta paid donated $3.39M to Gold Band and Avanti.
c) Damages not recoverable – check ! —Avanti and Gold Band get to keep the $3.39M.
d) Whole purpose illegal – check !
e) Knew it to be illegal – check ! (Tom Kain and Jim Keegan advised it couldn’t be done).

Readers, what are the chances of two small, opportunistic finance firms who are never likely to deal with Delta again, saying to Delta’s Directors:

“Well chaps, poor show, poor show indeed ! What about that Judge Osborne – a terrible time for him to have an attack of principles ! We shall not be sharing a drink with him at the Canterbury Club…. but don’t worry chaps, even though we don’t have to, and even though you or the courts can’t make us, and even though we have been put through the wringer first by NIL, then by the landowners, breached our trust deeds, had to pull our prospectus, and now been humiliated in court by your ineptitude, it’s all right, we will pay you back the $3.39m….”

It should be enough to say it is Tom Kain’s favoured finance company we are discussing here.

We should also consider WWDD ? (What Would Delta Do – in that situation ?). Readers, I hardly need to tell you that Delta would have announced a record profit, up by $3.39M, and the CEO and Directors would have all recommended healthy increases to themselves in light of their exceptional performance.

The rustling of paper we hear is Grady, Graham and the Delta Directors editing their CVs to remove any mention of Delta (memo to DCC : complain to Institute of Directors about misleading and false advertising !) and writing the first draft of their resignations, “for personal and family reasons”, of course.

For Delta, the Noble Subdivision is no longer an intermodal multiple train wreck : it is a nuclear career conflagration that will consume all those involved with it.

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Image: gettyimages.com

Dunedin Heritage Light Rail Trust —Update, July 2016

PUBLIC MEETING
Thursday, 28 July 2016 at 7pm
South Dunedin Presbyterian Hall (at back)
The Dunedin Heritage Light Rail Trust will hold a public meeting to update the community on its progress and announce the formation of the High Street Cable Car Society Inc, which will take over much of the work of the trust.

Mornington Trailer No. 111 [ODT files]

ODT Online Thu, 7 Jul 2016
Cable car group seeks funds to build
By Timothy Brown
The group behind a bid to re-establish High St’s cable car route hopes to open its temporary display museum by Christmas. The Dunedin Heritage Light Rail Trust is applying for funding and building consent for its temporary 72sq m display museum after securing a lease in Mornington Park from the Dunedin City Council last month. The museum would house a trailer and two grip cars in a bid to raise funds for a proposed $2.5million future facility, trust member Neville Jemmett said. “This is what we are calling our elephant step, because it’s the first time we have got a foot on the ground. Everything has been in folders and papers before now,” he said. The museum would comprise a three-door steel garage with a track for Mornington trailer No111 to be rolled in and out to allow for access and to display it. “It’s only temporary, that’s why it’s not a fancy building. It’s to basically show people that we mean business.”
Read more

—

Mon, 11 July 2016 at 12:27 p.m.
Received from Neville Jemmett, Dunedin Heritage Light Rail Trust
█ July 2016 DHLRT Heritage newsletter (PDF, 8.17 MB)

[cover page]

—

Related Posts and Comments:
27.5.15 Dunedin Heritage Light Rail Trust Newsletters 2015
4.11.14 Phillip George (Phil) Cole, RIP
5.6.14 DCC Transport Strategy and Riccarton Road
28.7.13 Dunedin Cable Car Trust – Public Meetings Sunday 28 July
14.2.13 Phil Cole on the High Street Cable Car
15.1.13 Return of High Street cable car
23.12.11 High Street cable car update
29.11.10 Phillip Cole on Dunedin buses
16.9.10 Pre-election opinions on public transport and the stadium
26.11.09 The Chronicles of Yarnia
19.10.09 Cable Car Meeting @Dunedin
27.8.10 Invitation to ALL #High St Cable Car
23.11.09 High Street Cable Car a possibility
9.7.09 Designing public transport for repeat use

—

Posted by Elizabeth Kerr

Delta #EpicFail —Epic Fraud #6 : What do you mean, Property Law Act ?

Received from Christchurch Driver [CD]
Fri, 15 Jul 2016 at 12:56 a.m.

Tonight, readers, we shall examine whatever vestige of credibility is left of the Gold Band Delta defence.

Your correspondent is familiar with legal chicanery, and believes a telling indicator to the pathetically weak state of Gold Band’s submissions in opposition to the stay, and Gold Band’s defence to the allegations of fraud, is the reference to time bar arguments. That is, if a plaintiff has not responded within timeframes set down by the court, then, the other side says, that that material cannot be further considered.

Gold Band’s counsel are clearly the rightful heir of the Kain mantle, as they have made up some time bar rules where none actually exist…. perhaps hoping that no-one, including the Judge, would notice…. what next, forged affidavits ?!

At para 12.8 of the Respondent’s Submissions In Opposition To Stay Application, Gold Band’s counsel, Mr Vinnell, says “The Applicants have forfeited their right to pursue the appeal by not prosecuting it expeditiously.”, and in para 12.3 “The appeal has been deemed abandoned…that is the wording used by the Court in its Notice of Result…”. To which the plaintiffs’ lawyers respond in their Submissions…For The Applicants In Support of Application for Stay Of Execution at para 37, “It is incorrect to say that the applicants abandoned their appeal. The appeal was never withdrawn…The applicants always had the right to seek an extension within three months, which they have done.”

What this shows is that Gold Band’s counsel are clutching at whatever straws they can find, and Delta-like, will try anything to close the eyes of the court to the substantive legal issues. Time bar arguments are the province of the desperate, and desperation is the mood du jour at Delta, DCHL, et al.

However, as always, readers, there is more, and better, and we must try to find humour in the darkest of places, otherwise it would all be too much. Even a brew of Bell’s taken straight would not be enough to revive us….

Prepare a brew, corner a Rastafarian and reclaim a tea cosy, as you will need sustenance into the night while you contemplate the following :

Your correspondent has made much of the fact that Delta has been accused of constructive fraud in previous posts, and is firmly of the view that they have broken the law, not to mention being bereft of any sort of integrity and morality. However, perhaps we should not be surprised at this sort of behaviour from council owned organisations (CCOs).

Your correspondent has been advised that the Christchurch City Council has a policy of “no admission of wrong doing”, so their lawyers have to, shall we say, “say that black is white”. There was a situation at the Noble Subdivision where the CCC lawyers claimed that consent had been given for a road entrance, which was demonstrably untrue, and the plaintiffs made a LGOIMA request to the CCC to confirm that the landowners had not given this consent – or the lawyers admit that they had no authority to admit the error. (The plaintiffs were the ones who had not given consent, so there was no question as to the facts). The LGOIMA response confirmed that the lawyers did not have the authority to admit wrong doing, and continued to say “but there has been no error” as the policy required them to do. Shades of the South Dunedin 2015 floods – perhaps Opus should open up a legal division – Opus do a lot of work for local and central government (another way of saying this, is that the private sector doesn’t touch them with an overlength barge pole) so everything starts to fall into place….

However, the really, really dispiriting news is that we don’t need to adopt a position of moral outrage at Delta’s despicable manoeuvres to deny the landowners’ prior interests at Noble Subdivision under the mortgagee sale, covered under earlier #EpicFail posts. We can remain calm, safe in the knowledge that no outrage is necessary, as Delta have found more ways to break the law involving mere incompetence, instead of fraudulent intent.

No outrage can be possible for mere Delta incompetence. We are all so inured to it that any similar emotion would have been exhausted long before now.

The plaintiffs’ lawyers have made the case at para 29 that apart from the fact that the security sharing agreement was illegal, it is also prohibited by section 84 of the Property Law Act 2007, which states:

“The interest of a mortgagee under a mortgage over property may be assigned by an instrument that…c) states that the mortgagee assigns to the assignee all the amounts and all the benefits of any other obligations secured by the mortgage, and all rights, powers and remedies…and the whole of the mortgagee’s interest…”

And readers, if we turn to Mr Smillie’s Partial Assignment of Debt and Security Sharing Deed (the title is a clear breach of the act in itself !) security sharing agreement, what does it say ? in Clause 3.2 it states “Gold Band hereby assigns to Delta…part of its right, title and interest in the Facility and the Financing Documents”. Hmm…. let’s see, Property Law Act…. “all the amounts and interests”; Mr Smillie…. “part of its right, title and interest”.

As Sesame Street’s Big Bird would say, one of these things is not like the other, one of these things just doesn’t belong…. can you guess which one…. Before Osbourne J finishes his song ? (on July 29).

However, desperate times call for desperate logic, and rushing to fill the gaping void in Gold Band’s case with legal bluster, is Mr Vinnell. Mr Vinnell attempts some Steve Jobs-like reality distortion : he says at para 13.6(b)

“Despite its title [???!!!] this is probably not an assignment at all – but rather an agreement by the first mortgagee that it holds the mortgage on trust for other parties”. What a risible, ridiculous statement. If a document is titled “Partial Assignment of Debt and Security Sharing Deed”, then we are not left in the dark about its intent. Words mean what they say they mean, Robin.

How could this be possibly be held “in trust” when the “trustee” (Gold Band) is being dictated to by the “beneficiaries”, being Delta, and previously, Avanti. The very slender branch that Mr Vinnell clings to is section 97 of the Land Transfer Act 1952, which contemplates that the Transferee “holds the same as a trustee for any other person”. This is not a trust. We know it is a deed of assignment because that is the title that Mr Smillie gave to it.

But there’s more. The pièce de résistance of Mr Vinnell’s “arguments” – I use the term loosely – is when justifying the partial assignment, he backtracks and says

13.6(c) “Even if there was an assignment, Section 84 of the Property Law Act…doesn’t apply to create any restriction…This is very commonly done in the financial sector.”

Now, using the excuse that if it’s common practice in the “financial sector” then it must be OK (regardless of what the law says) has any sentient person falling about in paroxysms of cynical laughter.

Other “common practices” in finance companies, and the banks to some degree, that has led to New Zealand having a dramatically reduced finance sector, are recklessness, short termism, venality, greed, incompetence and a casual disregard for the law and commercial ethics. (Allied Farmers, Hanover, Provincial, Capital & Merchant, Dominion Finance, Equitable, and our very own St Kilda Finance, are but a few examples). These “common practices” led to an explosion in financial regulation post GFC (Global Financial Crisis).

Next readers, we shall consider what this may mean for Delta and the $3.39M they spent on this – soon to be judged illegal – partial purchase of the Gold Band first mortgage.

But first, this week’s bat riddle (s)

If Delta don’t own a mortgage anymore, but just an unsecured debt from Gold Band and Avanti – how can they have “improved their security position by $1.8M ? (Graham !!!)

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Image: quotesgram.com – Rasta Homer by LightBeam, tweaked by whatifdunedin

Sea level change : implications for coastal management

Link and Summary received from Rosemary McQueen
Wed, 6 Jul 2016 at 1:54 p.m.

The New Zealand Climate Science Coalition
Commonsense about climate change Link

Two of Our Coalition Members Reveal the True Facts about Sea Levels
Posted Mon, 4 Jul 2016
“In this short and accessible monograph, Willem de Lange and Robert Carter describe and explain sea-level change, including the many remaining uncertainties in our full understanding of what exactly drives this change, and discuss the implications, mainly regarding coastal management. The monograph is intended for policy makers, but it should be informative for any educated reader. De Lange and Carter analyse the causes of sea-level change, and describe how it has been measured – with tide gauges over the past 100 to 150 years and from satellites over the past 30 years. Their key message is to recall that sea-level change is a local phenomenon, with high variability and multiple causes.”
Professor Vincent Courtillot writes this in his foreword to the Global Waming Policy Foundation paper by which our Coalition members, Dr Willem De Lange and the late Professor Bob Carter rebut alarmist propaganda about rises in sea levels and what causes those levels to rise and fall.

█ SEA-LEVEL CHANGE : Living with uncertainty
By Willem P de Lange and Robert M Carter
Foreword by Professor Vincent Courtillot
http://www.thegwpf.org/content/uploads/2014/05/Sea-level-report.pdf

SUMMARY [from the paper]

1. Global sea-level corresponds to a notional world-wide average and is determined by the interaction between the volume of the ocean basins, the volume of water that they contain and the effect of Earth’s gravitational field.

2. Change in global sea-level is caused by:
• a change in ocean basin volume, controlled by geological forces
• a change in seawater density, resulting from variations in ocean temperature or salinity;
• the addition or subtraction of water from the ocean by the melting and freezing of glaciers and ice-caps.

Global sea-level is estimated using averaged measurements from a worldwide network of coastal tide-gauges or from satellite-borne instruments. Because they represent a worldwide average, neither of these figures has any useful application to coastal management in specific locations. Instead, a knowledge of local relative sea-level change, as measured at specific coastal locations, is the basis for practical coastal management. Local sea-levels are rising or falling in different parts of the world, depending upon the direction and rate of movement of the underlying land (tectonic change).

3. Sea-level change is mainly a coastal management issue, but the position of sea-level is only one of several important factors that controls the position and changes in the disposition of the shoreline. Other important forces and controls that have to be considered include:
• the rise or fall of the land
• the supply of sediment
• the weather and climate (short and long-term temperature, wind, rainfall)
• the oceans (waves, tides, storms, tsunami)
• erosion and gravitational collapse (for cliffed shorelines).

4. In its natural state, a sedimentary shoreline may shift landwards or seawards by metres to many tens of metres over periods between days and decades. In the past, coastal inhabitants have adapted to such changes, and trying to prevent them by controlling the amount of carbon dioxide in the atmosphere is neither practical nor cost-effective.

5. Coral atolls depend upon the interaction of a shallow ocean sea floor(generally the top of a submerging volcano), the growth and erosion of a coral reef, and the natural forces of winds, waves and tides. The integrity of an atoll is constantly under threat from entirely natural erosive forces. On top of this, human activities such as sand mining, construction project loading and groundwater withdrawal all cause local lowering of the ground surface, and thereby encourage marine incursion. It is this human interference, in combination with episodic natural hazards like tides and storms, and not global sea-level change that provides the alarming footage of marine flooding on atolls that from time to time appears on television news screens.

6. Changes in sea-level over long periods of time (millions of years) are inferred from geological evidence. These long-term changes suggest that any sea-level rises in response to temperature increases decelerate rather than accelerate over time. Such changes also indicate a maximum rate and duration of natural sea-level rise of about 30 mm/y over periods of a century or so.

7. Based on these geological studies, it appears that slow global sea-level rise– typically less than 10 mm/y – has been taking place over the last 10,000 y. At specific localities, this rising trend interacts with changing land levels due to a range of geological processes and multi-decadal climatic oscillations to produce different patterns of local relative sea-level change throughout the world – in some places rising, in others static and in others falling.

8. The long-term tide-gauge data record a 20th century average global sea-level rise of about +1–2 mm/y. It is established by many studies, too, that over the last 150 years global sea-level has been rising at an average rate of about 1.8 mm/y, which is inferred to represent the slow continuation of a melting of the ice sheets that began about 17,000 years ago.

9. Based on the same records, the IPCC has estimated an average rate of global rise between 1900 and 2000 of 1.6 mm/y (2007; 4th Assessment Report) or between 1901 and 2010 of 1.7±0.2 mm/y (2013; 5th Assessment Report). This global average ignores both short-term and multi-decadal changes in sea-level that are known to be associated with meteorological and oceanographic oscillations, and the local and regional effects of land movement. These additional factors are likely to continue to be important for future sea levels, and so should be considered in conjunction with projections of global sea level. The dominance of such processes in sea-level change means that for environmental management purposes sea-level changes should be assessed at local to regional scales, and not globally.

10. Satellite measurements of global sea-level have only been available since 1992, and the technology is therefore in its infancy. Complex computation and statistical analysis is required to transform raw satellite measurements into a sea-level curve, including the correction and piecing together of records collected over many years by ageing, and ultimately different, satellite vehicles. In recent years, it has been claimed on the basis of satellite measurements that the rate of sea-level rise since 1992 is greater than 3 mm/y – twice that measured using tide-gauge data for earlier periods, although the IPCC’s 5th Assessment Report considers it likely that similar rates occurred between 1930 and 1950. This apples-to-oranges comparison has formed the basis of claims that the rate of rise is accelerating, as required by the global warming hypothesis.

11. Most policy discussions regarding sea-level change are conducted in terms of computer modelled projections, rather than of factual information. In its 4th Assessment Report in 2007, the IPCC used physics-based computer simulations of the Earth and its climate to project a rise of sea-level of between 18 and 59 cm by 2100. The bottom end of this range corresponds with the 18-cm rise in sea-level predicted by empirical models and matches the long-term tide-gauge rate of rise of 1.8 mm/y.

12. Semi-empirical models produce the highest and most alarming estimates of rates of future sea-level change so far published (between 0.8 and 1.8 m by 2100). Strong controversy exists over the likely accuracy and policy usefulness of these results. Given that both empirical and deterministic modelling yield more modest projec- tions of future sea-level, the semi-empirical models can at best only be viewed as a work in progress.

13. The IPCC estimates that 1.1 mm of the 20th century sea-level rise of 1.8 mm/y can be accounted for by the combined effects of continuing ice melt (~0.7 mm/y) and ocean expansion due to warming (~0.4 mm/y), with the remaining ~0.7 mm/y relating to dynamic oceanographic and meteorological factors. The relatively small contribution from melt water indicates that there is no scientific basis for the claim that global warming will imminently melt so much ice that sea levels will rise dra- matically; by 20 ft in the imagination of Al Gore (Gore, 2006) or by 5 m in that of Jim Hansen (Hansen, 2007; Hansen and Sato, 2012).

CONCLUSIONS

Current global sea-level policy, supported by many governments, is to reduce the quantity of carbon dioxide in the atmosphere in order to slow a global warming that is apparently no longer happening, in a vain attempt to reduce the rate of global sea-level rise. This policy attempts to moderate a theoretical environmental variable, ignores local sea-level and coastal management realities, is ineffectual in significantly reducing sea-level rise and is not cost effective compared to incremental adaptation.

Global sea-level policy as currently practiced by governments is therefore scientifically uncertain and both financially and politically unsustainable.

POLICY RECOMMENDATIONS

Based on the material presented in this paper we recommend the implementation of three policy guidelines.

● Abandonment of ‘let’s stop global sea-level rise’ policies: No justification exists for continuing to base sea-level policy and coastal management regulation upon the outcomes of speculative deterministic or semi-empirical sea-level modelling. Even were the rate of global sea-level change able to be known accurately, the practice of using a notional global rate of change to manage specific coastal locations worldwide is irrational, and should be abandoned.

● Recognition of the local or regional nature of coastal hazard: Most coastal hazard is intrinsically local in nature. Other than periodic tsunami and exceptional storms, it is the regular and repetitive local processes of wind, waves, tides and sediment supply that fashion the location and shape of the shorelines of the world. Yes, local relative sea-level is an important determinant, but in some localities that is rising and in others falling. Accordingly, there is no ‘one size fits all’ sea-level curve or policy that can be applied. Crucially, coastal hazard needs to be managed in the context of regional and local knowledge, using data gathered by site-specific tide-gauges and other relevant instrumentation.

● Use of planning controls that are flexible and adaptive in nature: Many planning regulations already recognize the dynamic nature of shorelines, for example by applying minimum building setback distances or heights from the tidemark. In addition, engineering solutions (groynes, breakwaters, sea-defence walls) are often used in attempts to stabilise a shoreline. To the degree that they are both effective and environmentally acceptable, such solutions should be encouraged. Nevertheless, occasional damage will continue to be imposed from time to time by large storms or other unusual natural events, and that no matter how excellent the pre-existing coastal engineering and planning controls may be. In these circumstances, the appropriate policy should be one of careful preparation for, and adaptation to, hazardous events as and when they occur.

It is the height of folly, and waste of money, to attempt to ‘control’ the size or frequency of damaging natural events by expecting that reductions in human carbon dioxide emissions will moderate climate ‘favourably’ – whether that be putatively sought from a moderation in the frequency and intensity of damaging natural events or by a reduction in the rate of global average sea-level rise itself.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Image: clipartpal.com – Hippo

Delta! Internal movement at DCC

Received.

Note | The following emails are not an attempt to lay out All email correspondence that has taken place between parties at or on behalf of Dunedin City Council on the matter of Delta. The What if? Dunedin website owner is given to understand that further correspondence has taken place at the Council to which neither Elizabeth Kerr or contributors to the What if? Dunedin website are privy or privileged.

All documents cited at the What if? Dunedin website, in postings by correspondent Christchurch Driver [CD] and Elizabeth Kerr, about the Noble Subdivision at Yaldhurst and related court actions, have been supplied directly to Elizabeth Kerr by “the neighbour”, one of the original landowners at Noble Subdivision, who is both caveator and plaintiff/litigant.

Below, Cr Calvert has named documents with which she has been supplied independently by ‘the neighbour’. These, further documents and facts in the first instance were earlier supplied to Elizabeth Kerr by ‘the neighbour’ as plaintiff/litigant, according to their proper document status.

—

From: Hilary Calvert
Sent: Thursday, 14 July 2016 11:49 a.m.
To: [Officer, Dunedin City Council]
Subject: Re: Privileged and confidential – Delta securities in ChCh subdivision

Dear [name removed],

The documents to which you refer below I assume are the ones which I circulated.

They are:

Decisions made by the Court of Appeal.
A minute issued by a judge.
Submissions produced by a litigant for the purpose of filing in court.
Comments by myself about Deltya [sic] and the Noble subdivision.
An affidavit which was filed in a court proceeding on which a judgement has now been issued.

I am unsure whether you are suggesting that as a general rule documents associated with a court case are likely to be privileged.
In my view this is not the case.

Indeed privilege will usually only arise in a defensive manoeuvre, namely where discovery is requested and a litigant does not wish to provide the documents requested citing privilege as the reason. Most documents relating to court proceedings are not privileged.

Privilege belongs to the client/ litigant. In these proceedings none of the documents have been claimed as privileged, and there is no suggestion that the DCC has or would have any privilege in any of them.

If the DCC were involved in any of this litigation, and if any of it included any advice given to the Council, and if any of it was claimed as being privileged we would know this by now.

Please advise which of the 5 documents or categories of documents you think as a general rule would be legally privileged, and what you mean by “handling these documents”, particularly because I understand that for some Councillors your caution has been taken to mean that they should not read them.

Please also advise in what situations you would expect to advise Councillors that they as Councillors should take “independent advice”, since the usual expectation would be that the Council would provide advice to Councillors concerning their situation where there are legal issues whihc related to the role of Councillor.

Please also advise what you mean by “independent advice”. Do you perhaps mean that the advice you have given is in some way not independent, or that we cannot rely on your advice to be independent? If so is that the situation in other instances where you offer individual Councillor’s advice, or in fact where you circulate advice to us?

Kind regards,

Cr Calvert

From: Hilary Calvert
Sent: Thursday, 14 July 2016 11:23 a.m.
To: Elizabeth Kerr
Subject: Privileged and confidential – Delta securities in ChCh subdivision

I as a recipient of this email waive privilege if indeed there was any for the contents of this email.

Cheers,

Hilary

Begin forwarded message:

From: [Officer, Dunedin City Council]
Date: 7 July 2016 6:32:19 PM NZST
To: “Council 2013-2016 (Elected Members)”
Cc: Sue Bidrose, Sandy Graham
Subject: Privileged and confidential – Delta securities in ChCh subdivision

Dear Councillors,

I have been made aware that documents concerning court proceedings about Delta and the Noble Subdivision have been circulated to you. While I do not know what is in those documents, I encourage you to be cautious because as a general rule documents associated with a court case can be legally privileged. If they are privileged you may be found responsible for breaching privilege if you circulate them further. Please ensure that you take independent advice to satisfy yourself that you will not be in breach of any obligations you have as elected members or be in breach of legal privilege in handling these documents.

Regards,

[name removed]
Dunedin City Council

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Notes |
Can legal professional privilege be waived?
Yes. Legal professional privilege can be waived by the client – that is, the client can choose to release the information that is privileged.

Johnstone disputes Opus review #SouthDunedinFlood

### ODT Online Thu, 7 Jul 2016
Flood review clears DCC staff findings
Dunedin City Council staff have been vindicated by peer reviews which backed their findings over the cause of last June’s devastating floods. The reviews, carried out by infrastructure consultancy firm Opus, backed the council’s findings South Dunedin and other parts of the city would have been flooded even if the city’s stormwater system was running at full capacity.
Read more

Opus peer reviews of DCC flood reports received (same day) following a LGOIMA request made on 7 July 2016:

DCC Nov2015 rpt review-final (PDF, 395 KB)

DCC Apr2016 rpt review-final (PDF, 329 KB)

****

A truly independent inquiry into the council’s performance around last year’s South Dunedin floods remains long overdue, writes Dunedin engineer Neil Johnstone.

### ODT Online Thu, 14 Jul 2016
Opinion: Report skims surface of South Dunedin flood saga
By Neil Johnstone
OPINION Readers of the Dunedin City Council-funded independent peer review of its post-flood reporting (ODT, 7.7.16) should be wary. The council’s delight with the review may prove short-lived. In brief, the Opus review:

● Recognises the 1968 rainfall event was bigger than that of June 2015 (contrary to repeated council claims).
● Fails to explore the reasons why the 2015 flood was a disaster, and the 1968 event was not.
● Makes assumptions about groundwater levels without referencing the actual data.
● Appears to consider the council’s assumption of zero ground infiltration has merit (note: the data disproves this).
● Believes mud-tank blockage impacts of the flood were “localised” (too bad if you were a local), but fails to consider the likely widespread impacts on South Dunedin of blocked mud-tanks in the St Clair catchment.
● States council reviews “suggest” its failures at the Portobello Rd pumping station caused an increase in flood levels of about 200mm.
● In fact, the first council review leaves the reader with no more than an opportunity to infer this, while the second council review only states that the failures may have influenced “the length of time flooding was evident”.
● I do not recall the council actually publicly admitting the 200mm figure before the South Dunedin Action Group meeting of June 21.
● Fails to address the flood impacts of the council’s total failure to operate its Musselburgh pumps for stormwater relief.
● Makes general statements to the effect that “primary” flooding would have occurred under any circumstance. South Dunedin residents know that “overwhelming” of stormwater infrastructure was not the concern; the avoidable flooding of our people’s houses and businesses was.

For all of the above reasons, and more, the Opus finding the council report’s conclusions were “robust” is concerning. A truly independent inquiry into the council’s performance pre, during and post-flood, at staff and political levels, is long overdue. ODT Link

—

Related Posts and Comments:
● 7.7.16 Where is the unreserved DCC apology to … South Dunedin ?
● 4.7.16 Presentations available —a) 4 July USA —b) 20 June SDAG
● 28.6.16 The Star and RNZ on raised flood levels #SouthDunedin
● 27.6.16 CULL commingled #AGWbullsfeatherartists
● 21.6.16 Mayoral Statement to South Dunedin
● 20.6.16 Public Meeting: South Dunedin Action Group #tonight
18.6.16 South Dunedin stormwater pipes —getting past the desktop ICMP
● 17.6.16 So we’re going to play it this way #SouthDunedinFlood
● 16.6.16 Public Meeting: South Dunedin Action Group #AllWelcome
● 6.6.16 Listener June 11-17 2016 : Revisiting distress and mismanagement
6.5.16 South Dunedin Action Group: Notes of meeting with DCC (3 May 2016)
14.4.16 South Dunedin flood risk boosters #ClimateChangeCrap #PissOffPCE
26.2.16 Mudtanks and drains + Notice of Public Meeting #SouthDunedinFlood
● 31.12.15 2016, have mercy !@$#%^&*
10.4.15 DCC: Natural Hazards

*Bullet points indicate comments entered after the public meeting 20 June.

█ For more, enter the terms *flood*, *sea level rise*, *stormwater*, *hazard*, *johnstone*, *opus*, *hendry*, *south dunedin action group*, *debriefing notes* or *listener* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Delta #EpicFail —Epic Fraud #5 – Delta and the ghostly hand of Tom Kain

Received from Christchurch Driver [CD]
Sun, 10 July 2016 at 10:41 p.m.

Dear Readers

When your correspondent began to post on Delta’s involvement at the Noble Subdivision, he was expecting to find some noteworthy stupidity on the part of Delta, but had no idea the degree of disgusting amorality and contempt for the law that Delta and its enablers have displayed.  

Warren Buffet once said “show me the incentive and I will show you the result”. Your correspondent believes that Delta’s management team will do ANYTHING to avoid crystallising the loss at Noble, and will hide behind any fig leaf, legal or otherwise for as long as possible – because on a salary package of nearly $500,000 (not far from DOUBLE the salary of the DCC chief executive) Delta CEO Cameron (and possibly others) will have a portion of his salary at risk, subject to meeting certain KPIs. Booking a massive loss of many millions is not usually an acceptable KPI, let alone satisfactory job performance, particularly when CEO Cameron presided over the decision to proceed with Noble in 2009 and has never – publicly – raised any concerns.

This is despite Delta already having lost around $14M at the failed Jacks Point and Luggate subdivisions, and both of those subdivisions were in trouble in late 2009 when the final decision to proceed with Noble was made.

Yes, yes, readers, I hear the saucers rattling as the cups are slammed down, the Choysa leaking onto the Formica  – “this is old news…. CD is retreading ….get to tonight’s point!”

In a recent earlier post, WWTKD – What Would Tom Kain Do ?, your correspondent, somewhat tongue in cheek, posited that Delta had learnt from Tom Kain and had a fiendishly cunning plan A and plan B. Plan A being flouting the law – knowingly – and if that did not work, Plan B being “suing the stuffing out of their law firm”.

It turns out, following some explosive revelations in counsels’ submissions in the recent litigation, that this is ACTUALLY WHAT HAPPENED in respect of Plan A.

In the most recent action discussed in Epic Fraud #4, the counsel for the landowners stated “defeating the applicant’s caveat was the sole purpose behind the Sharing Agreement, as noted by David Smillie, solicitor for Delta: “If the existing caveats are not withdrawn … then there will also need to be a Security Sharing Deed with Gold Band”.” [Email from David Smillie, 4 May 2011]

In an email dated 11 February 2011, Mr Smilllie sets out step by step how the deception will work:

“1. NIL granting a registered mortgage to Delta.
2. Philpott etc consenting to registration of the mortgage (but the caveat remains in place ahead of Delta’s mortgage).
3. Gold Band agrees to Delta having 1st priority.
4. Gold Band agrees to hold its 1st registered mortgage on lot 19 on trust for Delta (to allow sale / enforcement by Delta if necessary so as to avoid caveat issues).”

Mr Smillie concludes by stating, “While not ideal, that seems to be as close as we can get to a 1st registered mortgage position for Delta given the caveat issue”.

Let us allow that to sink in. Delta and their lawyers, had in December 2009 approached the landowners to remove their caveats to allow Delta to register a first mortgage for their debt. The landowners did NOT relinquish their caveats, but instead gave Delta a “caveators consent” and allowed Delta to register a second mortgage behind their caveat on the express terms that Delta security include their caveated interests and provisions.  

Delta were then able to register a $5M second mortgage. However, no doubt in light of the Delta debacles at Jacks Point and Luggate that had made a massive hole in Delta’s finances by then, Delta wanted more than a second mortgage. Delta was 100% prepared to give the static clothesline to the very landowners who had provided them with security in the first place. (Without this second mortgage security, Delta would not have been able to even contemplate their despicable deceptions).

Bottom line, readers : Delta’s response to the landowners’ consent to provide them with $5M of security is this attempt to defraud the landowners of their known prior interests.

Readers, you may say say, oh well that is simply what CD thinks, and the landowners, let’s just wait and see what the Judge says, or, if necessary, the Court of Appeal. They are the experts, not some lightly caffeinated Christchurch Driver.   

Perhaps, readers, perhaps, but what does Gold Band’s lawyer say in light of this onslaught ? Unbelievably, the lawyer (a Mr Vinnell from Anthony Harper) states that “Delta ….has not given any instructions to Gold Band under the Security Sharing Deeds for those lots”. [see 13.6 (h) New arguments, in Respondent’s Submissions in Opposition to Stay Application, CR Vinnell for Gold Band, 27 June 2016]

WTH ? What about the email from Gold Band’s CEO refusing the landowners’ offer to redeem their first mortgage because Delta would not allow them to ?! Is an instruction the same as a prohibition or a refusal ? Delta did not need to provide any instruction to Gold Band as it was made perfectly clear to Gold Band, years before the official NIL default, what Delta’s expectations were – in Mr Smillie’s email of 8 March 2011, “so as to be able to overcome the caveat if it became necessary to enforce Delta’s security”. [para 20, Submissions of Counsel for the Applicants in Support of Application for Stay of Execution. Duncan Cotterill solicitors, 20 June 2016]

Mr Vinnell is out on a slim reed indeed. He then blusters that none of this is new. Maybe not new Mr Vinnell, but true.

Another excuse offered (and amazingly, accepted by Judge Osborne), was that it was “commercially expedient” for the security sharing agreement to cater for Delta rather than the applicants. [para 25, Submissions of Counsel for the Applicants in Support of Application for Stay of Execution. Duncan Cotterill solicitors, 20 June 2016] This is the basis of the appeal : That expediency is not a justification for land transfer fraud. And yes, readers, there is definitely more on this to come.    

Readers, we in fact don’t have to wait for the judicial system. We have an expert who has tried judges’ patience at every court in the land with similar spurious arguments, and there is no one, and I mean no –one!, who has a better view about how far the law can be bent and abused, having been arguably (how he loved that word!) the country’s leading exponent of vexatious litigation.

I refer of course to the late Tom Kain. Yes, Mr Kain’s palsied and quivering hand extends beyond the grave….

The smoking gun from Mr Kain : The landowners’ counsel writes [para 22], “It appears that Noble, Delta and Gold Band suspected their arrangement sailed very close to the wind, as an internal email of 13 October 2011 from Tom Kain notes:

“Some time ago when we asked Jim Keegan whether or not Delta could be granted security over Gold band’s mortgage and he did not think this could be done. However David Smillie, on behalf of Delta, believes this can be done….”

Jim Keegan is a senior partner at Cavell Leitch, a large Christchurch law firm. Mr Keegan graduated from Law School 44 years ago in 1972, and is the head of their (large) specialist property team. He is the go-to lawyer for a number of large developers. Mr Smillie, on the other hand…. is Delta’s lawyer.  

Tom Kain was the man, readers, who proffered an agreement to a party at another subdivision some years ago. The party signed the agreement, and then Tom Kain promptly sued the party for agreeing to it, having been the one who prepared the agreement. And it didn’t stop at the High Court. Tom Kain took the case all the way to the Privy Council, where he lost comprehensively. The Law Lords said derisively of Mr Kain’s argument, “it offends both equity and common sense”.

It has come to this. Delta will go to the dark places that Tom Kain – Tom Kain ! would not go. Delta offends not only equity, common sense, but integrity, honesty, commercial practice and common decency. It’s no wonder they had to shut down in Christchurch. They would be commercial pariahs. Even hard nosed Australian contractors would baulk at this. No one would trust them to clean even a mudtank (Sorry, Fulton Hogan!) after this behaviour.  

But readers, there’s more. The central defence of the Gold Band / Delta in opposition to the stay action discussed in Epic Fraud #4 was that there was a buyer for the mortgagee sale, and if the stay was allowed the buyer may walk. Gold Band wouldn’t disclose the buyer, but your correspondent understands that Delta / DCHL have already advised or intimated to the DCC earlier in the year that Delta is part of the buyer’s consortium, and if that is the case, Gold Band and their lawyers are misleading the court by omitting this very material fact.  

And then there is the inevitable Delta misdirection. In response to a letter about the Noble debacle (ODT 3.3.16), CEO Cameron stated categorically, “We are no longer involved in this type of civil construction, and won’t be again.” Grady, how can this statement be true if Delta is part of the mortgagee sale and will have ongoing “involvement”, and you knew this when you made this statement? If this is the case your credibility is further diminished (is there any left?).   

Mr Crombie, Mr Cameron, and ALL the Delta Directors (aka turnips) : If and when the courts find that Delta has acted outside the law, this will end some careers at Delta and DCHL. Massaging numbers to hit your KPIs is not going to help you now. There will be fast and furious duck-shoving and plaintive cries of ignorance. Your correspondent’s message tonight : The cover-up is always worse than the crime, and you are all complicit in that. This extra legal activity has been going on for years, on top of the actual massive debt, and not one of you has expressed any misgivings to your Owners, the DCC, that even ‘potentially’ illegal behaviour is going on. Not a single one of you emerges with any credibility.

Your correspondent understands that at this very moment, time is up for some of you. In the DCC garden, the overripe, malodorous turnips are being turned over. This is a very good thing.  

You heard it here first at What if?, readers.

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Image: wesharepics.info – their zombie bad policies, tweaked by whatifdunedin

Note | Litigation privilege requires:
1. that the document(s) come into existence when litigation was either already under way or was ‘reasonably apprehended’ (meaning it’s a serious or realistic prospect); and
2. the ‘dominant purpose’ for creating the document must have been to enable the client’s legal adviser to either conduct the case or advise the client on that litigation.
Can legal professional privilege be waived?
Yes. Legal professional privilege can be waived by the client – that is, the client can choose to release the information that is privileged.

Delta #EpicFail —Epic Fraud #4 : Tales from the Courtroom….

Received from Christchurch Driver [CD]
Fri, 8 Jul 2016 at 1:19 a.m.

Readers, you were promised some instalments on the current Court Action(s), and your correspondent made a prediction that the “Security Sharing Deed” prepared by Delta would be destroyed and shown to be illegal and unenforceable with career ending consequences for Delta Directors, advisers and staff alike.

We can report that things are brewing nicely. In rugby terms, while the ref hasn’t pulled out the red card, he is definitely reaching into his pocket. There must be some collective buttock clenching at Delta, in the DCHL Boardroom, and particularly, at the law firm that wrote the Security Sharing Deed. But let us digress onto other matters tonight, and save the big security sharing reveal for next week, closer to when Osborne J releases his decision.

Pour a brew, pull up a chair, and digest with Bell’s Best the following :

This latest case (because there have been many court actions on the Noble Subdivision) is where the plaintiffs, being the original landowners of the Subdivision, are seeking a stay on a court decision that removes the caveats that protect their interests in the land. The landowners had already won in Court twice before on this issue, against the Owner, NIL, but now Gold Band and Delta are effectively re-cycling that argument, indulging in financial carborundum (wearing down) of the plaintiffs. The landowners have appealed the High Court decision to the Court of Appeal, but if the mortgagee sale on the land occurs, which is due to go unconditional on July 29 2016, then the plaintiffs will be unable to enforce any Court Decision, as title will have passed free and clear to the new owner. (Legal term : The appeal will be rendered nugatory).

Your correspondent has read the submissions of counsel for the Court Action (CIV-2014-409-716), and even though this is just an application for a stay, the oasis is blooming again with plenty of material that is of particular interest to Delta’s Owners. (That is you, readers). It will take several posts, but here is the bottom line that springs to mind : after reading the submissions, there are no shades of grey. There is a stronger argument, and a weaker one, and unlike Socrates, Gold Band’s lawyer is under no threat -whatsoever- of execution for tampering with that order….

The Delta / Gold Band lawyer has made a series of statements that do not stand up to forensic examination. Put another way, they are compellingly stupid assertions.

A bit of legal background, readers : to have the Court uphold a stay, a precedent ruling – Dymocks Franchise Systems (NSW) v Bilgola Enterprises establishes the factors that must be weighed

1. Will the appeal be rendered nugatory if the stay is not granted
2. Bona fides of the applicants
3. Will the successful party be injuriously affected
4. The effect of third parties
5. The novelty and importance of the question involved
6. The public interest in the proceedings.

In this case 1, 3, 5, 6 are the relevant factors.

Gold Band’s solution to 1. is to propose that if the plaintiffs are successful in the Court of Appeal, in order to enforce their rights for the wrongful removal of the caveats they would then have to sue Gold Band for damages, as the property would have been sold. In a classic foot-in-mouth manoeuvre, Gold Band’s lawyer then gives lie to the myth of Gold Band as a corporate colossus that is well versed and able in legal battles, by stating in para 11.4 that a paltry $1.2M mortgage plus interest is causing Gold Band “serious issues as to its ability to operate as a finance company within its Trust Deed”. Gold Band only has $6.4M total capital and made a profit of $532,000 FY 2015. We can be very sure it is in absolutely no position to face a court action for millions, and your correspondent says it would not exist by the time the action got to court. Advantage : Plaintiffs !

Having opened with that foolish position, the Gold Band defence then quickly descends to the ludicrous on 3. (Gold Band being injuriously affected) by stating that “The evidence on this is compelling” …. “Gold Band has spent $26,000 on Mortgagee Sale Advertising and $104,000 on legal fees associated with the sale”.

Gold Band claim that they entered into a contract for sale of the land on May 2 2016, and that “the contract is conditional and the purchaser could walk away as a result of the stay”. We then get the sob story about what a trial and a burden the first mortgage is on Gold Band, “serious issues….ability to operate….” as noted above, which is just utter rubbish. Gold Band made out like bandits when they sold parts of the first mortgage (as per our earlier post, The Little Finance Company that did (Delta). ). At 22.50% compounding, with an imminent settlement there would be lines out the door to buy this mortgage……IF IT WERE LEGAL TO SPLIT A FIRST MORTGAGE……

Putting that aside (just for the minute Graham, Grady, you can bank on more forensics on THAT little topic !) – our hapless Gold Band lawyer fails to disclose that in July 2014 Gold Band valued the Noble Subdivision – as is – at $20.58M, and Gold Band’s CEO, Mr Brennan deposed recently that the first mortgage is just $8M, so barring Delta-like incompetence, there is no way that Gold Band will not recover the $130,000 costs they spent on the sale, and until they get it, they get to charge 22.50 % on those costs !! What’s not to like !! Game : Plaintiffs!

To complete the rout (Game – Love), the plaintiffs’ lawyers note that under the terms of the tender, [21.4] Gold Band can defer settlement of the mortgagee sale up until August 2017 which will allow plenty of time to resolve the caveat issue before the land is “sold”…. but wait Batman, said Robin…. Is it actually going to be sold ?

Voiceover….
Conveniently, the identity of the purchaser of the mortgagee sale is not revealed because “The purchaser has not consented to its disclosure,” say Delta Gold Band.

Batman : How very, very interesting. We are now getting to the nub of the entire #EpicFail matter. I say this “Purchaser” is in some way related to the following parties or associated interests : NIL, Apple Fields, Tom Kain’s Estate, Gold Band, Justin Prain, Gordon Stewart, and of course the DCC, DCHL, and Delta, and that DCC, DCHL, Delta are going to have a CONTINUING INVOLVEMENT in the Noble Subdivision for YEARS TO COME.

Robin : But Batman, how do you know this ?

Elementary, my trailing junior sidekick : In the February 19 2016 Delta press release, there was the phrase, “A successful conclusion of the sale….will remove the main obstacle to the subdivision being put on the market and Delta beginning to recover its outstanding debt”. Robin, words are a universal form of communication – they mean what they say, and with my comprehension SKILLS it is clear that these obfuscating lawyers or PR people are trying to fool the good people of Dunedin that a sale of the land is imminent and Delta will get (some) of its money back. But look at the words. If there is a “successful conclusion of the sale” to an arms length purchaser, then it’s a one shot deal – Delta will get all they are going to get once the prior interests are paid. Nothing more to be done. Take the lumpen loss and move on. But then it says FOLLOWING the conclusion of the sale, “the subdivision being put on the market and Delta BEGINNING to recover its debt”. The only way this can be true is if Delta are involved in the party purchasing the land, and the crucial tell-tale word, BEGINNING, indicates that until sections are sold, then Delta will not receive any money, if they receive any at all. Your caped correspondent says that this is several years, and several court actions away.

Lastly, in a fit of supreme arrogance, Gold Band’s lawyer says that there is no public interest in the case, and there is nothing novel or important involved. Nothing to see here Judge, the Court can move on…. Must not waste “public resources of the court system”, although as noted earlier, the same lawyer happily recommends the landowners waste their private resources on yet more litigation against Gold Band instead of a stay. He demeans the landowners, saying, they have “a history of running appellate litigation in this manner”. Memo to lawyer : accuracy demands that you amend that to “successful appellant litigation”….

No public interest ? This lawyer clearly doesn’t read What if?, live in Dunedin, or read the National Business Review (who compared Delta management to turnips), and is oblique to the revolutionary idea that the ratepayers of Dunedin must have some way to know if indeed the company they own has acted like a corporate criminal, as has been alleged in court documents. Because dollars to doughnuts, the ODT will not be reporting on it.

Readers, this week’s Bat riddle

Q : Why won’t the ODT make any report on the court decision on the Security Sharing Deed arrangement outcome ?

A : Because new ODT CEO Mr Grant McKenzie said there was “no relationship” between Gold Band and Delta, when there are dozens of emails and a security sharing deed that show this is not true, and public humiliation is not generally considered an effective form of career advancement, especially if the “relationship” that was denied is held to be illegal and fraudulent.

Stay tuned readers, same bat-time, same bat-channel, same Bell’s Best.

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Where is the unreserved DCC apology to the Community of South Dunedin ?

Updated post
Thu, 7 Jul 2016 at 5:45 p.m. [link to peer reviews via LGOIMA]

—

And where are the Opus International ‘peer reviews’ for public scrutiny.

All we have is the self-congratulatory propaganda from DCC and the motley crew, propagated by friends at ODT.

Flood review clears DCC staff findings

SHAME

We hear from inside DCC that the peer reviews are not up to much.

Opus, you say?

Hmm.

News. Farce. Like an incessant rash.

Reasons for political Removal.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

#Wests —Councillors ??! Please act. [DCC out of order.]

Image: wests.co.nz

Tue, 5 Jul 2016
ODT: Liquor licence appeal baffles Wests
Public Health South and the Dunedin City Council’s decision to appeal the renewal of a Dunedin soft drinks institution’s liquor licence is “bewildering in the extreme”, the company’s director says. Wests (NZ) Ltd was granted an off-licence in April after a battle from November last year by the company to renew its licence.

NAMES
The decision has been appealed by Public Health South medical officer of health Dr Marion Poore and Dunedin City Council licensing inspector Martine Cashell-Smith. The appeal will be heard by the Alcohol Regulatory and Licensing Authority next month.

—

Comment at ODT Online:

What is the Council doing?
Submitted by Challispoint on Tue, 05/07/2016 – 10:14am.

This morning I sent the following letter to each of the DCC Councillors as I am furious they are picking on this great local business.

Dear Councillor –

I read with dismay your Council’s decision to appeal the West’s licence renewal after 139 years of exemplary service to the people of Dunedin. Your action appears to be a further example of the Dunedin City Council’s failure to support local businesses, and confirms a complete lack of appreciation for your voters’ opinion on this issue.

If you are going to argue, as I am sure you are, that you have no choice as you must act within some law which demands shops cannot sell alcohol and lollies then you will have my complete support to shut down Wests after you have taken action against the two main Countdown Supermarkets in Dunedin. In both these operations you cannot enter the stores without passing the highly discounted alcohol on sale. If you are not prepared to act against these stores, then your action against Wests is nothing other than bureaucratic bullying at its worst.

Having made so many negative decisions affecting the people of South Dunedin in recent times, I suggest you do not add this action to your list.

I ask that you immediately withdraw the Council’s appeal against the re-issue of West’s licence and act instead to support this longstanding, excellent, South Dunedin business.

WESTS is proud to be New Zealand’s oldest continuous manufacturer of Cordials and Soft Drinks. The Wests brand began back in 1876, the same year another local family, the Speight’s, began their brewing business….

Website: http://www.wests.co.nz/

█ Read about the history of the company and what it does now at http://www.wests.co.nz/history

Otago Daily Times Published on Aug 26, 2015
Making of a Wests soft drink bottle
The staff at Wests are fizzing with excitement because the company’s own automatic bottle-moulding machine has just produced its millionth bottle.

—

Posted By Elizabeth Kerr

DCC encourages Election Candidates

█ FYI Dunedin Issue 41 July 2016 (PDF, 251.1 KB)

Read online or source back copies at:
http://www.dunedin.govt.nz/your-council/fyi-dunedin

█ HOT PRESS.— Fees and Charges
Most DCC fees and charges will rise by an average of 3% from 1 July.

IMPORTANT DATES
Nominations for candidates open Friday, 15 July and close 12 noon on Friday, 12 August.

ENROLMENT TO VOTE
Check your enrolment details online at www.elections.org.nz or at any NZ Post Shop.

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

*Images: screenshots by whatifdunedin

Presentations available —a) 4 July USA —b) 20 June SDAG

Link received.
Mon, 4 Jul 2016 at 12:29 p.m.

Sam Eagle Uploaded on Jun 27, 2008
Stars & Stripes FOREVER!
I, Sam the Eagle, present a musical salute to America.
(c) 2009 The Muppets Studio, LLC

—

From: [Dunedin City Council]
Sent: Monday, 4 July 2016 11:55 a.m.
To: Elizabeth Kerr
Subject: Response to Information Request

Dear Ms Kerr,

Official information request for CEO SPEECH SOUTH DUNEDIN

I refer to your official information request dated 27-June-2016 for “a full copy of DCC Chief Executive Sue Bidrose’s speech and overhead slides presented to the public meeting hosted by the South Dunedin Action Group on 20 June at Nations Church, King Edward St.”

The information you have requested is available on our website at:

Click to access SC2200115516062812500.pdf

If you wish to discuss this further with us, please feel free to contact the chief executive and request an appointment.

Yours sincerely

[Dunedin City Council]

Download: Sue Bidrose – South Dunedin and stormwater June 20 2016
(PDF, 1 MB)

—

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.