Copy of Letter sent to Companies Office re banned director and convicted burgler Bernard Terence Whimp who has used limited partnerships to run “low-ball” share offers for NZX-listed securities, targeting “mum and dad” investors.
Compliance Unit: Companies Office
27 March 2011
QUESTIONS RELATING TO SIX COMPANIES THAT BERNARD TERENCE WHIMP OWNS AND WAS A FORMER DIRECTOR OF until 15 November 2006.
(Note: He was banned from being a company director under section 382(1) of the Companies Act 1993 for a period of five years from 19 April 2007 to 19 April 2012).
1. General Loan and Finance Ltd (1122353)
2. Halcyon Management Ltd (1498875)
3. Craton Investments Ltd (1119122)
4. Icahn Investments Ltd (944491)
5. Yorktown Capital Ltd (1118910)
6. Deepdale Investments Ltd (970786)
All these six companies are currently directed by Athol Thomas Whimp, who according to Companies Office Records, currently resides at the same residential address as Bernard Terence Whimp: 518 Woodend Road, Rangiora 7473.
The Companies Office website states with respect to three of these companies (Nos. 1, 2 & 3 from the list above):
“This company is now overdue in its obligation to file an annual return. If the annual return is not filed immediately the Registrar will initiate action to remove the company from the register.”
Questions to the Companies Office (see below) concern:
A. The appointment of Athol Thomas Whimp as director of all six companies listed above and the matter of the filing of the six respective Director Consent Certificates with the Companies Office, as required by law, within the prescribed time period: that being within 40 working days from the date of appointment.
In each case involving the six companies, the Consent of Director Certificates were faxed to the Companies Office on Monday 5 May 2008 and the appointment is recorded on each Certificate as having been made on Thursday 28 February 2008. These are the facts.
Twenty working days after the stated date of appointmemt is Monday 31 March 2008. Twenty working days following that is Tuesday 29 April 2008 – the deadline for filing the director’s certificates of consent.
Therefore the filings of all six Consent Certificates for ‘director’ Athol Thomas Whimp, were significantly late, as they were submitted on the fourth working day following the expiry of the dealine (29 April 2008). It appears that all the appointments made on 26 February 2008 were therefore, in law, constituted invalid: they were late.
The law states that following an appointment of a new director, the current director(s) has/have only 20 working days to notify the Companies Office of an appointment. This can be done on-line or by written notification. Following this date of notification a limit of 20 working days is then allowed, and no more, for the certificate to be lodged with the Companies Office. If in the case of notification being made on the very last day of the first deadline (i.e. the 20th working day following appointment), then the certificate itself must reach the Companies Office no later than the 40th working day following the appointment date stated on the certificate.
This law appears to have been breached in the case of each of these six appointments of Athol Thomas Whimp to six companies owned by Bernard Terence Wimp. Each of the six certicates were not faxed through to the Companies Office until the 44th working day following the ‘appointments’ of Athol Thomas Whimp on 26 February 2008..
Question 1: Are these six appointments of Athol Thomas Whimp to the six companies listed above lawful in the light of the above facts?
Question 2: If they were not, who is legally accountable for these breaches of the law and what if anything is the National Enforcement Unit of the Companies Office intending to do about this?
Quesion 3: Prior to the ‘appointment’ of Athol Thomas Whimp as director, Tristram James Benjamin Whimp was appointed director on 15 January 2007 by Bernard Terence Whimp. Was Tristram JB Wimp, who later resigned as director on 29 February 2008, legally responsible for complying with the law with regard to the appointment of Athol Thomas Wimp as director on 28 February 2008?
Question 4. Did Tristram James Benjamin Whimp comply with the law with respect to these six appointments of Athol Thomas Whimp?
Question 5: If indeed there have been any breaches of the law in the six appointments of Athol Thomas Whimp as director, how can this director continue to legally hold these positions?
Question 6: If indeed there have been any breaches of the law in the appointments of Athol Thomas Whimp as director, was the Companies Office aware of this, and if so why have invalid certificates been filed on line and remained online?
The next set of questions to the Companies Office (see below) concern:
B. The transfer of 100 shares in the company General Loan and Finance Ltd (1122353) from Boxster Holdings Ltd (1212582) to Bernard Terence Whimp was recorded on line on 8 August 2005. The submitter of this information was recorded as Halcyon Management Ltd, owned and directed at the time by Bernard Terence Wimp, who recored his residential address at the time as 146 Fendalton Road, Fendalton, Christchurch. This is the only record of share transfers among the documents filed for General Loan and Finance. Boxster Holdings was directed by John Clinton Rains, who resigned on 31 October 2004, the day before the company was was put into liquidation on 1/11/04, a process that was completed on 14/10/05.
Question 7: The “History data for shareholders” records that all 100 shares in General Loan and Finance Ltd were vacated by Boxster Holdings on 27 June 2010 and are now owned by Bernard Terence Whimp. Given that all the assets of Boxster Holdings were presumably realised when the liquidation of the company was completed on 14 October 2005, why have these shares reverted to Mr Whimp?
Question 8: In a similar fashion to the above, all 100 shares of Craton Investments Ltd, were transferred to Mr Whimp on 31 October 2005, rhis time from John Clinton Rains. Why does the “History data for shareholders” show that Mr Rains vacated them all to Mr Whimp on 27 June 2010, despite the fact that Mr Wimp alone owned them from at least 31 May 2005 onwards?
Question 9: In a similar fashion, all 100 shares of Halcon Management Ltd. were transfered to Mr Whimp on 16 June 2005, this time from Angela Maree Campbell. Why does the “History data for dhareholders” show that Campbell vacated them all to Mr Whimp on 27 June 2010, despite the fact that Mr Wimp alone owned them from at least 16 June 2005 obnwards?
Question 10: In a similar fashion all 100 shares of Yorktown Capital Ltd were transferred to Mr Whimp on 31 October 2005 by John Clinton Rains. Why does the “History data for shareholders” show that Rains vacated them all to Mr Wimp on 27 June 2010, despite the fact that Mr Wimp alone owned them from at least 31 October 205 onwards?
Question 11: Alll 100 shares of Deepdale Investments Ltd were transferred to the joint ownership of Mr Whimp/John Clinton Rains on 31 October 2005 by the latter individual. The “History data for shareholders” shows that Rains vacated them all to Mr Wimp on 27 June 2010. If all other five companies involved the same transfer of unstated joint ownership to single ownership, why have these detals not been correctly recorded on the Companies Office website?
Question 12: In a similar fashion all 100 shares of Icahn Investments Ltd were transferred to Mr Whimp on 31 October 2005 by John Clinton Rains. Why does the “History data for shareholders” show that Rains vacated them all to Mr Wimp on 27 June 2010, despite the fact that Mr Wimp alone owned them from at least 31 October 2005 onwards?