Header Ad Module

Collapse

Announcement

Collapse
No announcement yet.

APIA: David Whitburn 25/8/10

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • #16
    Not sure I follow Halfempty?

    Comment


    • #17
      It just struck me that this could be the home of "Strike them down before you have heard them say anything".

      How many Seminars, events, ideas and strategies have met an early grave here before the presenter has stood on the stage.

      Comment


      • #18
        There always cynicism on these forums around new education providers, which is unsurprising given the past experiences of some. The risk you refer to is therefore certainly there, but I think on the whole PT is usually sufficiently open minded with a new presenter unless there is some relevant information available. Richmastery, for example, had a significant number of supporters on these forums in the early days (though obviously less now ).

        It is possibly a moot point since there are very few new education providers these days and any that do surface seem to have some association with an existing provider.

        Comment


        • #19
          Originally posted by [email protected] View Post
          [/B]So total legal experience 2 years??
          and 9 years of experience at a big 4 accounting firm.

          More than enough experience to give an OVERVIEW of ownership structures. It isn't like he is claiming on being a Guru or anything.

          I think it is interesting that you focus on trusts, something that has not changed significantly since the middle ages (and a requirement to know to become a Lawyer), yet you dont query his knowledge of the new qualifying companies regime, something that is so new, there isn't even draft legislation.

          Did anyone go??

          Comment


          • #20
            Starts at 7pm tonight CJ.

            I also don't know why Dean implies there have been recent changes but we've already been down that path recently so I didn't bother revisiting it.

            Comment


            • #21
              I mention trusts because the opening post describes him as a trust lawyer, that is all.

              Comment


              • #22
                Originally posted by [email protected] View Post
                I mention trusts because the opening post describes him as a trust lawyer, that is all.
                he is a qualified lawyer and all lawyers know trusts so technically correct. He is technically call himself a Barrister as well.

                I hope he does one for the group meeting that I go to - will be fun to ask him some tough questions.

                Comment


                • #23
                  Property Guru does u-turn

                  I wonder if my comments to leading financial journalist Rob Stock of the Sunday Star Times in "Property guru does u-turn" on July 18th of this year have helped Dean decide on whether to post or not:
                  http://www.stuff.co.nz/business/3929...does-US-u-turn

                  On a technical note, I am happy to agree I am a Trust Lawyer and not just a Trust Salesperson. Sorry I will not be offering you any referral fees/commissions Dean! I was very interested to hear your view that trusts are a "nightmare now".

                  Saying Trusts are shams - a sales tool using fear?
                  Interestingly at the NZ Law Society Trust Conference last year Jim Guest (a partner of Downie Stewart in Dunedin since 1982, an author of Heath & Whale on Insolvency, contributor to legal publisher Brookers Practice & Procedure, and experienced litigator) in his address noted that the "sham trust" case of Official Assignee vs Wilson [2008] 3 NZLR 45 (Court of Appeal) provided a lot of comfort to those with trusts and self managing them. Jim Guest's cynical summary of this case was that "it appears not to matter whether the 'client' is running the trust, even if not a trustee, or is benefiting from the trust even if not a beneficiary. Also, if there are none of the indicia of the trust's existence, such as resolutions or accounts, there will be no adverse consequences."

                  From talking with other practitioners last year, an allegation of sham trusts has now finally been found in New Zealand and upheld in the Family Court (KWF v KWF). Regal Castings Limited v Lightbody & Ors was not about sham trusts, but about a creditor's rights to attack assets in a family trust (in terms of s60 of the old Property Law Act 1952 on alienation of property to defraud creditors). A cynical view I have heard from other lawyers is that if I were selling a book with the honest purpose to maximise sales income from selling my trustee service I would go to media and say that most trusts are poorly run, it is a sham etc.

                  KWF v KWF is thought to have been the first case in NZ on a family trust being upheld to be a sham. Perhaps a bit less trust sales, and more trust law focus is needed by Mr Letfus and to stop scaremongering people into paying trustee fees, when they can be educated by being given a modern flexible trust deed and training on the crucial role as trustee in the family trust arrangement, so they don't have to be many hundreds of dollars down in trustee fees that are for so many people unnecessary, and merely a not always totally honest way to extract more revenue from 'trusting' clients.

                  Say No to Hawkins Clauses
                  While we are talking about trust law, lets talk about "poison pill clauses" or Hawkins clauses that some trust practitioners (particularly non-lawyers) think are smart! Since drafting my first trust in 1998 and having drafted many hundreds of asset protection plans (trusts, wills, memorandum of guidance, resolutions, powers of attorney) I refuse to draft Hawkins clauses.

                  Where is the commercial reality in inserting a clause in a Deed of Acknowledgement of Debt (IOU) that has a loan for say 20 years (I have even seen 50 years!) that has no interest or inflation adjustment and can only be called up by a particular person. Note in Official Assignee v Stanford a Hawkins clause (from now on 'poison-pill' clause) was set aside and the OA got a summary judgement against the trustee on the debt. My recommendation is not to follow your trust salesperson's advice and follow advice from the NZ Law Society's Family & Property Law Section and not have any poison-pill clauses.

                  Hope to have enlightened your inner guru a little bit more Dean, and wish you all the best for your future sales ventures and promotions.
                  Last edited by David_W; 27-08-2010, 11:19 AM. Reason: html code fixing to italics and bold

                  Comment


                  • #24
                    There are some snippets from OA v Wilson in the thread I linked earlier.

                    It is actually JFW v KFW, just case anyone intends to look it up. Personally I would view that case with caution. It seems to me that the Court of Appeal was prepared to take a much more robust approach in OA v Wilson than the Family Court did. I suppose the reality is that it's unlikely anyone is going to agree with all of the decisions in an area which is so dependant on the individual facts.

                    Regal Castings Limited v Lightbody was very interesting, but as you point out is not related to the legitimacy of a trust. It is more a warning to people attempting to dispose of assets to a trust when they have existing creditors. Interestingly there are few articles on that (from trust salespeople anyway), perhaps because it doesn't encourage people to set up trusts. I have to admit to sharing your cynicism in that regard.

                    Comment


                    • #25
                      Hi David, not sure what you are on about. All I asked is whether you were a trust lawyer as it appeared you were not a specialist or a long term practitioner.
                      And given that David Leon is involved in the business it is reasonable to assume there is a sales process involved, but I was solely commenting on propoholics post.
                      I note you have left the question unanswered so we'll just have to guess.

                      Comment


                      • #26
                        Thanks Xav - I missed the thread (http://www.propertytalk.com/forum/sh...628#post227628) before. Appreciate you giving the name of the case out, and to the non lawyers and trust salespeople reading the thread - cases at Family Court can be appealed and are not binding on the High Court, Court of Appeal or Supreme Court.

                        Comment


                        • #27
                          Originally posted by [email protected] View Post
                          All I asked is whether you were a trust lawyer.
                          Actually you expressly questioned his ability in this area and recommended that people see someone else instead. Personally I don't have a problem with you attempting to discredit other property investment educators (although obviously I will defend them if I don't agree), but don't try to dress it up as something it isn't.

                          If that was the only question you intended to raise with your posts why would you state:
                          Originally posted by [email protected] View Post
                          I note you have left the question unanswered so we'll just have to guess.
                          given that David has expressly answered that question:
                          Originally posted by David_W View Post
                          On a technical note, I am happy to agree I am a Trust Lawyer and not just a Trust Salesperson.

                          Comment


                          • #28
                            Thanks Xav, I had missed the "technical note" :-)
                            And discrediting DAvid was the furthest thing from my mind. Having worked with him in his Fuzo days I simply found the statement weird as I had never heard him express being a trust lawyer ever and could find no record of it.
                            It's also true to say that when I think of a "trust lawyer" I am thinking of a structure specialist rather than just a lawyer.
                            Last edited by [email protected]; 26-08-2010, 04:57 PM.

                            Comment


                            • #29
                              I don't think Dean and David are in competition - last I knew, Dean had more experience with the other end of the law, rather than practicing it (that's why he now has experts on which to call when needed).

                              The question was:
                              Originally posted by Dean
                              When did David become a trust lawyer??
                              I don't know, but I'd guess than when he passed his law exams.

                              If the question had been, as seems to have been the intention,
                              Originally posted by Second Guessing what Dean wanted to ask
                              When did David become experienced enough in Trusts to earn the trust of the PI community?
                              the answer would be different for every one here.
                              DFTBA

                              Comment


                              • #30
                                Originally posted by David_W View Post
                                Say No to Hawkins Clauses
                                While we are talking about trust law, lets talk about "poison pill clauses" or Hawkins clauses that some trust practitioners (particularly non-lawyers) think are smart! Since drafting my first trust in 1998 and having drafted many hundreds of asset protection plans (trusts, wills, memorandum of guidance, resolutions, powers of attorney) I refuse to draft Hawkins clauses.

                                Where is the commercial reality in inserting a clause in a Deed of Acknowledgement of Debt (IOU) that has a loan for say 20 years (I have even seen 50 years!) that has no interest or inflation adjustment and can only be called up by a particular person. Note in Official Assignee v Stanford a Hawkins clause (from now on 'poison-pill' clause) was set aside and the OA got a summary judgement against the trustee on the debt. My recommendation is not to follow your trust salesperson's advice and follow advice from the NZ Law Society's Family & Property Law Section and not have any poison-pill clauses.
                                Hi David,

                                Interesting comments. I agree a Hawkins clause isn't bullet proof, but does it do any harm? Isn't it just another hurdle to make it harder for a creditor?
                                Also my understanding of a Hawkins clause was that it just "could only be called upon by that particular person".
                                I thought the other part was an entrenchment clause, which tried to stop the individuals loan to a Trust being immediately repayable. Normally the period is only 5-7 years max from a certain period in time.

                                Most lawyers (not trying to criticise, this is more from my experience) do up loans from individuals to Trusts as "repayable upon demand". This means if anything ever happens to the individual, the Trust could immediately have to repay the loan.

                                To protect the trust, and I think this makes great commercial sense from the Trusts point of view, having a period of time where the individual can't claim the loan back is great.

                                Lastly, what is the harm in having an entrenchment clause (as long as done correctly)

                                Ross
                                Book a free chat here
                                Ross Barnett - Property Accountant

                                Comment

                                Working...
                                X