Professional Documents
Culture Documents
R E P O R T OF T H E I N S P E C T O R S
A P P O I N T E D TO E N Q U I R E INTO T H E
A F F A I R S OF A N S B A C H E R (CAYMAN)
LIMITED
V O L U M E [15]: A P P E N D I X X V ( 1 6 8 ) TO X V ( 1 7 1 )
UNDER OATH
accurate transcript of my
Stenographer
PRESENT
MS. MACKEY BL
30 HERBERT STREET
DUBLIN 2
I N D E X
WITNESS EXAMINATION
MR. ROWAN
23
24
25
26
27
28
29
4
1 MR. JAMES MCCARTHY, HAVING BEEN SWORN, WAS EXAMINED
2 AS FOLLOWS
7 dates.
25
27
5
1 statement here, which has been very helpful, and I
7 A. Yes.
11 correct?
24 3 Q. You did?
6
1 companies, Independent newspapers, and companies
3 4 Q. I see.
8 taken then that they should sell off all the pieces
18 then?
26 Arcon.
27 7 Q. Arcon?
29 Atlantic Resources.
7
1 8 Q. Of?
2 A. Of Atlantic Resources.
11 Arcon, roughly?
14 11 Q. 1997?
15 A. Yes .
22 A. That is correct.
28 at that time?
29 A. Yes .
1 15 Q. Now, at paragraph 12 you say:
9 period?
12 1972.
17 17 Q. We being ...?(INTERJECTION).
27 A. Yes .
12 and myself.
19 A. Yes.
22 A. In Tara, yes.
28 A. Right.
11
1 A. Not really, no. The next one would have been this
19 sell it.
24 35 Q. Yes.
26 you are never too sure -- the only thing you knew
12
1 it was a good one. Now, from what I gather, Des
7 well.
17 Mr. Traynor?
18 A. No.
3 what happened?
14
1 participate ourselves. Unfortunately, where I was
13 42 Q. Not at all.
17 43 Q. Yes, I f
18 know.
25 ...(INTERJECTION).
29 A. Yes.
15
1 45 Q. Guinness & Mahon itself?
2 A. Yes, definitely.
5 A. Yes .
11 48 Q. Yes .
8 before?
11 say it was not like, "If you come into this vehicle
20 A. Yes .
28 Trust?
29 A. Yes .
1 56 Q. Now, did you understand that to be the case at the
9 got the money, but getting the money was what I was
16 subsidiary?
28 A. That is right.
18
1 A. Very happy with that, yes.
4 62 Q. He, personally?
11 A. That's right, yes, but this was not a thing that was
19
1 A. Well, can I say this; in my view, at that time, I
10 it was Medford.
16 A. No.
17 67 Q. How did that come about then? What was the purpose
18 of Medford?
24 the shares.
20
1 when you are going to sell them. Supposing that the
9 shares.
14 beneficial owner.
16 statement?
28 A. That's right.
21
1 entity?
16 like that, you really think that they are doing the
17 right thing.
23 ...(INTERJECTION).
26 20.
27 A. Yes.
29 Kentford.
22
1 A. Yes .
7 cheques.
9 A. Yes .
23
1 had a sob story. I was nearly always short, you
24
1 know. Things like that just weren't important at
2 the time.
14 a second.
18 A. Yes .
20 A. That is what I would get from him and then you might
24 much interest?
25
1 obviously get these letters from John Furze and he
5 A. I never.
22 A. Yes .
24 A. Yes .
2 A. Yes.
9 and he is saying:
15 "... E5 account."
16
19 "Dear Sir,
At the request of Mr. J.S. McCarthy we
20 have pleasure in attaching hereto a
draft payable to him for £3,500, and
21 would be grateful if you would lodge it
to his account and advise him of the
22 position. Yours, etc, J.D.T."
23
27
1 surprised I never got a cheque from -- I do not know
7 A. No.
9 Islands ...(INTERJECTION).
14 103 Q. It doesn't?
28
1 about?
8 Investments ?
10 about.
12 shareholder?
13 A. That's right.
16 Mahon?
18 buy it.
23 A. Yes .
29
1 was run by Guinness & Mahon.
5 A. Okay.
7 SHORT ADJOURNMENT
14 of.
16 do with Beryl?
23 113 Q. Right.
28
30
1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
31
1 MR. MCCARTHY WAS EXAMINED, AS FOLLOWS, BY MR. ROWAN
4 explained to us that,
8 A. Yes, right.
15 A. That is right.
32
1 to the final 50 feet or 100 feet and literally then
13 over a period?
14 A. Yes.
33
1 at it and they say, 'Well, I think we will do this,
34
1 subsequently we saw that that led to considerable
3 A. Absolutely.
6 investment?
28 little?
35
1 obviously, I am sure as an accountant you would have
9 That was truly the way it was. Now you say 'How in
16 A. Guinness & Mahon got their money back, but they must
17 have ...(INTERJECTION).
36
1 acquired the loan first and by the time (inaudible)
5 security?
6 A. In 1990, I think.
7 130 Q. You have said that your security really would not
12 been.
19 loan.
26 position then.
3 that stage?
15 disappointment to you?
22 interesting investment?
25 as simple as that.
38
1 judgment on the risk. So they lent you money on
2 your judgment?
11 A. That is right.
14 A. Yes, yes.
24 A. That is right.
39
1 which was the reason. Maybe they said, 'There will
40
1 selling. That is the view I have now, having been
2 advised by my accountant.
10 shares are not like the normal climb and the normal
16 that the reports are good and the reasons are good
17 and the sands are right and the (inaudible) and all
22 company?
41
1 bit there, Ms. Mackey. There was another little
13 A. That's right.
19 A. Yes.
22 Trust.
42
1 A. Yes. Well, certainly, it would not have mattered to
14
16
19
23 A. Yes.
25 any others?
43
1 office four times, including totally losing every
4 ...(INTERJECTION).
5 154 Q. If I can stop you, Mr. McCarthy. Are they the only
8 155 Q. Yes .
11 A. None at all.
20 off-shore?
23 160 Q. The documents that you have given us, these were at
2 we came up with.
7 162 Q. Sorry, you said you sent your secretary down there?
8 A. And myself.
10 A. Yes.
15 files.
16 165 Q. You took out from the documents in the basement the
21 ...(INTERJECTION).
23 A. No, no.
45
1 A. Sorry, you mean with Guinness & Mahon?
6 banks.
7 171 Q. Very well. Now, I want to ask you this about your
9 that:
12
13 Is that correct?
16 A. Yes.
17 173 Q.
"These dealings arose from loans made
18 by the company to me for the purpose of
investments by me in certain shares."
19
20 Is that correct?
21 A. Yes.
24 175 Q. The vehicle that was used was this off-shore company
29 loaned?
46
1 A. Yes, that is right.
9 Nominees?
10 A. Yes.
13 180 Q. Did you not check to see in whose name the shares
20 183 Q. The original loan was so that you could own shares
22 A. Yes.
24 further shares?
25 A. That is correct.
27 two loans?
47
1 assist you, enable you to have all the shares which
4 A. Yes .
6 shares ?
7 A. I did.
9 A. Yes .
10 189 Q. You have not found any document which evidences the
12 nothing at all?
15 not.
17 Ascot Holdings?
24 A. Yes .
28 ...(INTERJECTION).
2 made?
4 date.
7 A. Yes .
9 A. I was .
11 A. It was.
13 A. Yes .
14 198 Q. Over the page there, the photostat is very bad, but
16 Fitzwilton"?
17 A. Yes .
22 A. Yes .
25 Fitzwilton shares?
28 badly.
6 A. Yes.
21 third each.
27 A. Yes.
29 A. 1986, yes.
50
1 207 Q. Now I want you to turn to the letter of 13th
4 A. Yes.
6 got that?
9 £1 million?
10 A. Yes.
11 210 Q. That, in fact, was the debt which was then owed by
13 A. Yes.
18 £1,015,037?
19 A. Yes.
25 213 Q. You see, the letter that I was referring to, of 21st
51
1 IV) ?
10 "Re: ASCOT
11 Dear Jim,
I am sure that the three of you have
12 clear figures in your records but just
in case!
13
March 1987, September 1987 and March
14 1988 had advances made ex Ascot to look
after other items for the three of you
15 as follow:
J.S. McC. Stg. £161,768.86
16 V.F. £134,121.85
17 C.J.C. £179,729.08
18
19 £475,619.79
2 0 = = = = = = = = = = = =
21
In arriving at the balance of Interest
22 due as at 31/5.1990 I have taken into
account the following payments made:
23
By J.S. McCarthy Stg. £14,675.07
24 By Vincent Ferguson Stg. £7, 449.78"
25
26
52
1 letter of 543 in 1986, that approximately makes the
2 million pounds.
4 1990?
5 A. Yes .
10 pic shares?
11 A. Yes .
17 A. Yes .
24 the debt?
25 A. That is right.
28 223 Q. Yes .
7 226 Q. Yes .
17 and he said, 'I don't want it, just keep it, we will
19 other problems.'.
4 problems.'.
7 A. Yes .
11 A. Yes .
20 sold.
24 trust.
27 trust?
3 bank?
6 happened when you paid off the loan? They had been
11 A. Yes .
19 243 Q. Yes .
21 sure ...(INTERJECTION).
27 years ago.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
57
^ r V V
3 VWx^ a o O o
Appendix XV (168) (1) (b)
J
Dear Sir,
At tlL request of Mr. J.8. McCarthy we have
pleasure in attaching hereto draft payable to him for
£3,500 and would be grateful if you would lodge it to
his account and advise him* of the position.
/
Youra etc.
JDT/AJW
Appendix XV (168) (1) (c)
L GUINNESS MAHON CAYMAN TRUST UMTT5D
L TttaohorwNo (809-0*1 94463/4
A MWII ot if Gun**— Mahon MwehMii Sarang (3ms
\L Dear Des,
L PURCHASED
Li 51,954.00
SOLD
. i
50,000 FiCxwilcon 38,093.25
• i
V PURCHASE!?
J
175,000 Atlantic Resources £46,361.14
J
Abov* amount paid on 15th December 1986
J
./cont'd
J
Appendix XV (168) (1) (d)
•tdViMMl St*** '
I '
J. r<. :ravr. — '|r t.-nj»fr. 1P06
L
L Jje presently
flPyin-n
R c j e . T.-es ta
ho d 7r
lis.
ihares i n F i t « v i . ' - * n
Atlantic
4 0 , 0 0 0 A.R.
L s'raras.
Th« l o a n p c s ' - ' r - i* fr-Jlcwsi-
I
c« :osh Novamber 1964 475,"50.9a
Purchases - net - see abovr 13.B60.75
£5*.2,<}10.77
'J
The loan has been rtnevad for a farther «onth at 13 1/8% per ammn.
Tours sincerely,
u it
•J -
J
JOHN A. FURZE
J
J
J
i
J
s u /.ar
Aasbacher Limited
A Mtmbtr tfthm Htnry AmMm Hoiitop PLC Mtrdmu Want Gfeu
i
P.O.totM7. Qraod Cayman. Briddi W«m India
niOMC («0») 94*463)1*
Teto CP 4303
Fas (109) 949.7946
(8») W W W
FeteuarylS, 1990
JAFtal
i
i
!
Page 2 of 2
I -
ixXVBfitjOSnitS XB^QSZVd tso COtiMIpocooodlzi^ page aM~tiagleteMd in fbaftaraaof
our wholly owned subsidiary, OVBBSBM EOGNEES L3METED, and are held by us in
K safe custody.
In acknmledgaseQt and acoeptanoa of the faraqoing taaai and txrejitiaris, and in
i* reongnlticn that in our capacity as diracbaea and officer* of ASOOT p m S N G S
[j LBQXBD we m y execute tfcsfcever decowntation ia required to paefeetf security
of the leader, ASSBaCBER LOtUED, m should be grataful if you would! kindly sign
and return tha aaxrpenylng copy cCtibialetter.
vtaoea faithfully*
U i
?
j
j
Appendix XV (168) (l)(f)
m768144/763085 42 FITZVyiLLIAM SQUARE..
'tartmiita812038
DUBLIN 2.
Dear Vincent,
I have been advised by John Purse that on Friday he sold 76,750.
shares at Stg,1.25 and on Monday 69,763 at Stg.1.22. The .
total sale was therefore 146,513 shares (leaving a balance of
475,000 shares) producing a net amount of Stg.E179,534.90 for
settlement on 22nd January 1990.
The balance which will be due - after the funds have been
credited on 22nd January 1990 - will he Stg.£1,015,037-90.
Will you please arrange to let Joan have Stg.815,037.90 on the *
31st January 1990 <1 am due to be in Cayman on that- day) and
she will advise me. Cayman will then arrange to issue a new
facility letter to the end of July 1990 as agreed with you.
Please confirm you will handle with Joan.
Kindest regards,
( Yours sincerely,.
J.P. Travnor
JDT/AJW
Appendix XV (168) (1) (g)
ft
igWI ; . . . __
Dear Jin,
I an aura the three of you have clear figures in your recorda
but just in caaa!
March 1987, September 1987 and March 1988 had advances sad* ex
Kscot to look after other items for *-,he three of you aa
follows:
3•S.KcC. Stg.£161,768.86
YKV £134,121.85
V*>c 812ii222*sa
£475,619.79
Xours sincerely,
J.O. Travnor.
c.c.
•JDT/AJW
0l^v
UNDER OATH
accurate transcript of my
Stenographer
PRESENT
MS. MACKEY BL
ARTHUR COX
EARLSFORT CENTRE
EARLSFORT TERRACE
DUBLIN 2
I N D E X
JUDGE 0'LEARY 51 - 68
1 THE EXAMINATION COMMENCED, AS FOLLOWS, ON MONDAY,
8 coming. I will
15
20
24
28
4
1 advise Ms. Breen about anything ask us and we will
2 stop.
11 way.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
5
1 MS. BARBARA BREEN, HAVING BEEN SWORN, WAS EXAMINED
10 A. Yes.
13 3 Q. Yes?
16 A. Managing Director.
18 for long?
20 it was founded.
22 Managing Director?
23 A. Financial Director.
6
1 A. Yes, there are two other companies; Windsor Foods
4 9 Q. Which is which?
8 11 Q. Right?
12 13 Q. As a selling company.
15 A. It is, yes.
17 North.
18 A. Yes.
24 15 Q. I see?
27 wound up or anything?
28 A. No.
7
1 now for the background?
2 A. Right.
5 it?
8 A. Yes .
10 Exhibit 1?
11 A. Thank you.
18 A. Yes .
24 our initial letter and you set out the two contacts
26 investigating?
27 A. Yes .
29 A. Yes .
1 24 Q. Which used to be called Guinness Mahon Cayman Trust
3 A. Yes .
6 A. Yes .
8 Des Traynor?
9 A. Yes .
11 A. Yes .
14 A. Yes .
16 A. Yes .
17 30 Q. In both of them?
18 A. Yes .
21 that date?
2 32 Q. Right?
5 33 Q. Prior to 1980?
6 A. Yes.
10 late 1970's.
11 35 Q. Yes?
16 about here?
18 38 Q. I see?
20 three years.
25 A. Yes.
10
1 Mr. Traynor's wife was my next-door neighbour when
2 I was a child.
3 41 Q. Yes?
9 Guinness...(INTERJECTION).
10 44 Q. Borrow?
13 A. Yes.
18 difficult.
19 47 Q. Yes?
21 48 Q. Yes?
23 49 Q. Yes?
11
1 check that. Yes, page 53 & 54 (Same Handed,
3 A. Thank you.
6 A. Yes .
8 A. Yes .
14 A. Yes .
18 55 Q. Yes?
21 56 Q. No, the date that it was due to be paid off was 197
26 ago?
27 A. (Indicating).
29 A. Likely to be it.
1 58 Q. Yes?
3 59 Q. Yes?
7 loan and then the limit and then the interest rate
11
13 A. Yes .
14 61 Q. It says:
15
16 "Suitably secured."
17
21
25 correct?
26 A. Yes .
13
1 description of loans? There has been some talk
3 A. Yes.
10 A. Right.
21 65 Q. Yes?
24 A. No.
27 A. Yes.
28 68 Q. By Mr. McLoughlin?
14
1 69 Q. However, that was later?
2 A. Yes.
5 A. No.
6 71 Q. With them?
7 A. No.
9 A. No.
15 It's not --
19
21
22 A. Yes.
26 A. Yes.
15
1 again you see:
9 A. No.
12 A. Yes .
14 Portugal?
15 A. Yes .
20 A. Yes .
25 conversation.
27 A. It was...(INTERJECTION).
16
1 a property in Portugal?
2 A. Yes.
6 86 Q. No?
8 87 Q. Yes?
11 88 Q. Yes?
14 89 Q. Yes?
18 A. No, to me.
19 91 Q. To you. Yes?
24 happened?
26 94 Q. Yes?
28 95 Q. Right?
17
1 with that.
4 A. No.
5 97 Q. He did not?
6 A. No.
8 company...(INTERJECTION)?
10 which...(INTERJECTION).
13 the lawyer.
16 A. Yes.
22 102 Q. Right?
24 103 Q. Yes?
26 104 Q. Yes?
18
1 106 Q. It did not go through Coral Reef?
2 A. No.
3 107 Q. I see?
6 A. Yes .
10 cheques ?
13 A. A bank draft.
16 you remember?
20 do you think?
23 A. It was a sterling --
26 A. Yes .
28 A. Yes .
2 A. Yes.
5 A. Yes.
7 Cayman as it happened?
8 A. Yes.
10
12
14
18
19 A. Yes.
30
20
1 MS. CORRIGAN: Filing fee or something.
2 A. Filing fee.
4 disbursements made
5 by Coral Reef?
7 119 Q. Right?
10 invoice.
11 120 Q. I see?
15 Limited.
16 122 Q. I see?
19 A. Yes .
23 A. Yes .
28 or Mr. Stakelum?
29 A. Yes .
1 126 Q. So, Mr. Stakelum then at that stage was aware of
4 127 Q. Yes?
12 129 Q. Yes?
14 many years.
19 A. No.
24 and Exhibit 7?
25 A. Thank you.
26 133 Q. You will see that the pages are numbered down at the
29 A. Yes .
1 134 Q. Can we do that?
2 A. Yes.
7 happened, yes.
10 A. Yes.
15
18
20
23
25 A. Yes.
28 A. Yes.
29 139 Q. You may or may not know what the IIB has to do with
23
1 any of this; most people who come to see us do not.
5 A. Yes .
10 IIB here?
11 A. Yes .
14
18
21 A. Yes .
23 A. Yes .
25 Director of Windsor?
26 A. Yes .
29 145 Q. You are still both, I see. So, you would have
1 been both at that stage?
2 A. Yes .
4 then?
6 Windsor Nutrition.
7 147 Q. Yes?
16 149 Q. Yes?
20 Ireland.
22 A. Yes .
23 151 Q. I see?
25 to Mr. Stakelum.
26 152 Q. Yes?
27 A. But...(INTERJECTION).
28 153 Q. Yes?
29 A. Because when...(INTERJECTION).
1 154 Q. May be if I can...(INTERJECTION)?
4 tease...(INTERJECTION)?
10 the situation?
11 A. Yes, yes.
18 A. Yes.
26
1 160 Q. Yes?
5 161 Q. I understand?
7 of anything.
16 the clients?
17 A. Yes.
20 A. Yes.
24 A. Yes.
28 us?
29 A. Yes.
27
1 167 Q. We have to try and find out as best we can from you.
4 not mind?
20 A. Okay.
22 right?
23 A. Yes.
29 Mr. McLoughlin's...(INTERJECTION)?
28
1 MS. CORRIGAN: Yes, I did, yes.
6 168 Q. Yes?
8 169 Q. Yes?
10 170 Q. Yes?
11 A. It wasn't my money.
12 171 Q. Right?
15 172 Q. Yes?
20 174 Q. Yes?
23 A. Probably, yes.
24 176 Q. Yes?
26 177 Q. Yes.
29
1 A. Yes.
4 A. Yes.
7 A. Yes.
16 A. Yes.
20 if I ... (INTERJECTION) .
30
1 these two documents then,
2 Ms. Breen?
8 front of her.
11 first one?
12 A. Yes .
16 A. Yes .
24 181 Q. Yes?
25 A. Irish pounds.
26 182 Q. Yes?
28 about it.
31
1 necessary to do so or would you first check with
5 184 Q. Yes?
7 185 Q. Yes?
11 186 Q. Yes?
16 fact...(INTERJECTION).
24 A. Well...(INTERJECTION).
25 189 Q. Yes?
5 A. No, no.
7 not, no.
15 192 Q. Would you have said to him, "Look, we need this for
18 this," or what?
19 A. I can't remember.
27 195 Q. Yes?
4 A. Yes.
5 198 Q. Yes?
6 A. I would have.
13 200 Q. Yes?
16 201 Q. Yes?
17 A. When it started.
18 202 Q. Yes?
20 worried.
21 203 Q. Yes?
23 204 Q. Yes?
24 A. In smoke.
29 Mr. Traynor...(INTERJECTION).
34
1 207 Q. So, you may have approached Mr. Stakelum?
3 208 Q. Yes?
8 very friendly.
9 210 Q. Yes?
11 211 Q. Yes .
14 you is...(INTERJECTION)?
15 A. Sorry.
20 A. Yes .
23 A. Yes .
27 Mr. Stakelum.
28 A. Yes .
3 A. But... (INTERJECTION) .
19 being asked?
23 Mr. Stakelum.
29 215 Q. Yes?
36
1 A. Or anybody else for that matter.
2 216 Q. Yes?
6 know --
13 218 Q. Yes?
18 given money.
19 220 Q. Yes?
21 221 Q. Yes?
23 there as such.
37
1 it.
2 223 Q. Yes?
7 contact?
8 225 Q. Yes?
12 227 Q. That was 1997. Any way may be we can pass on from
18 A. Yes.
24 A. Yes.
26 A. Yes.
28 A. It was, yes.
38
1 A. Yes.
2 233 Q. I see.
7 actually...(INTERJECTION).
11 previous time?
23 accompanying that?
24 A. No.
28 you are located, somebody does not open it, and see
39
1 A. But I would have telephoned the girl in the office
2 in the North.
12 company in Armagh.
14 have...(INTERJECTION).
24 it is coming from.
27 with it.
40
1 necessarily keep a
2 complement slip.
12 helpful.
21 Padraig Collery?
24 236 Q. Yes. However, did you have any dealings with him
26 A. No.
41
1 sterling payable to Windsor Nutrition. Again, the
o
On that occasion Mr. Collery got the draft?
7
A. Yes, I can appreciate what you are saying
8
9 but...(INTERJECTION).
11 Mr. Collery?
12 A. No, no.
14 Ireland?
17 feeling...(INTERJECTION).
19 A. Yes .
10 A. Yes.
11 243 Q. It says:
12
14
15 Is that you?
16 A. Yes, yes.
18 A. Yes.
21 Mr. Traynor.
22 246 Q. Yes?
25 earlier?
26 A. Yes.
28 A. Yes.
43
1 A. Because I would have owed that money to Merops and I
3 250 Q. I understand?
6 yourself?
7 A. Yes.
10 my debt.
16
18
19 A. Yes.
21 A. I am now, yes.
23 A. Yes.
27 given to me.
29 A. By the...(INTERJECTION).
44
1 259 Q. Or your solicitor sent us in a number of statements ?
2 A. Yes .
7 A. Thank you.
11
15
17 Scotland,
18
21
24
27
5 A. Absolutely no idea.
7 A. No.
9 A. Yes.
13 be the case?
17 A. No.
18 267 Q. No?
19 A. No.
21 A. No, he didn't.
23 A. No.
25 A. No, it didn't.
27 possible he had?
46
1 272 Q. I see. You do see that here we have a transfer from
3 A. Yes.
5 A. No.
14 (indicating).
17 276 Q. Yes?
19 that (indicating).
21 thing...(INTERJECTION)?
24 A. No, no.
47
1 A. Well, the money was -- Mr. McLoughlin had brought
3 281 Q. Yes?
5 282 Q. Yes?
7 283 Q. I see?
8 A. To Ireland.
9 284 Q. Right?
12 brought back?
17 A. January 2000.
18 287 Q. Yes?
20 288 Q. You were aware from 1980 that this fund was there.
22 it?
23 A. I -- yes.
26 A. Yes.
29 291 Q. Whether it was for your own use or for the company's
48
1 use?
6 that right?
8 financial aspects.
14 X amount of funds?
16 295 Q. Yes?
18 296 Q. Yes?
20 297 Q. Right?
22 298 Q. Yes?
24 299 Q. Yes, and he would tell you that he could arrange it?
25 A. Yes.
27 arrive?
28 A. Yes.
49
Thank you very much.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
50
1 MS. BREEN WAS EXAMINED AS FOLLOWS BY JUDGE O'LEARY:
7 A. Windsor?
9 A. Windsor Nutrition.
10 305 Q. Yes?
16 A. Yes.
19 and myself.
26 correct?
28 312 Q. £380,000?
29 A. Yes.
51
1 313 Q. I am not really interested in the numbers?
6 A. Yes.
9 A. Yes.
11 appropriate...(INTERJECTION)?
12 A. 1998.
13 317 Q. 1998?
16 A. Yes.
19 saying...(INTERJECTION).
20 320 Q. Yes?
22 society loan.
25 322 Q. Yes?
26 A. Or whatever.
27 323 Q. Yes?
52
1 A. I know that that was something he felt very
2 strongly about.
6 Islands ?
7 A. No.
9 A. Yes .
14 328 Q. I understand?
16 329 Q. Yes?
18 to me.
21 A. Yes .
22 331 Q. Yes .
26 an account in
28 A. Yes, yes.
5 A. It is not -- sorry.
7 point.
10 in his name?
11 A. Yes .
13 A. No.
20 position?
21 A. Yes .
22 336 Q. I see.
26 A. Yes .
7 due course?
11 if I comment
12 on...(INTERJECTION)?
25 (indicating)?
26 A. Yes.
55
1 339 Q. Yes. So, that is another substantial tranche
12
16 A. Sorry.
18 A. Yes.
21 (indicating).
22 345 Q. Yes?
25 difficulties.
27 A. And...(INTERJECTION).
29 matter.
56
1 A. They...(INTERJECTION).
8 349 Q. Yes?
9 A. So, that would have gone back to pay that loan. The
20 them to me.
21 350 Q. Yes. How would they have been dealt with in the
22 company's accounts?
24 an outstanding claim.
26 A. From a customer.
29 in against that.
1 353 Q. I understand that and you can take it that I
4 that I am asking?
5 A. Sorry, I am misunderstanding.
14 A. Yes, yes.
18 Mr. McLoughlin?
20 account.
25 359 Q. Yes?
27 360 Q. Yes, I see. Thank you very much. When you asked
28 Mr. Traynor for that money where did you think that
58
1 A. With this particular -- these are
2 sums...(INTERJECTION)?
4 will...(INTERJECTION)?
14 A. Dire straights.
18 Mr. Traynor was not a man who kept the money in his
28 me.
59
1 branch of the Allied Irish Bank because if it
2 was...(INTERJECTION)?
60
1 that there was interest being earned on the money?
3 370 Q. Yes?
20 A. Yes, yes.
23 A. Yes .
61
1 be mine as it were it was going to be under very
14 Mr. McLoughlin?
15 A. I did, yes.
18 A. Yes .
20 A. Yes .
22 A. Yes .
26 A. Yes .
62
1 concerned about the fact that it was not?
2 A. No, no.
5 that...(INTERJECTION).
9 384 Q. Yes?
14 385 Q. Yes?
63
1 here and as you are a Director to the company I am
3 A. Yes .
10 A. Right.
12 A. Okay.
14 A. Yes .
18 £100,000?
19 A. Yes .
22 A. No.
23 392 Q. I see.
26 393 Q. Yes?
28 document.
29 394 Q. Yes?
1 A. But it had something to do with a £100,000
2 guarantee.
4 same thing?
5 A. Exactly, yes.
9 1989.
10 397 Q. Yes?
14 398 Q. Yes?
20 399 Q. Yes?
22 bank, arrangements.
23 400 Q. Yes?
27 401 Q. Yes?
65
1 402 Q. Yes?
3 403 Q. Yes?
11
13 A. Yes.
14 405 Q.
15
17
18 Which is £100,000?
19 A. Yes.
20 406 Q.
21
27
29 means.
66
1 407 Q. Obviously some funds which were either owned by
3 A. Yes .
7 A. I don't. I don't.
9 £100,000?
10 A. Would this have been the fund which Mr. Traynor had;
11 is that... (INTERJECTION)?
13 A. Is that it?
19 the...(INTERJECTION).
28 A. I don't.
12
19 convenience.
23 of information to volunteer.
68
1 two of the questions that you asked Ms. Breen; that
3 information to me at meetings.
13 Mr. McLoughlin.
14
18 do that.
19
21 from Des Traynor who rang him and asked him to meet
69
1 MS. MACKEY: I think, Ms. Corrigan, you
5 think...(INTERJECTION).
7 it...(INTERJECTION).
17 funds.
21 Judge O'Leary's
24 the interest:
28 earned on it.
70
1 MS. CORRIGAN: He regarded him as
2 effectively a Trustee.
6 Mr. McLoughlin.
9 make...(INTERJECTION).
11 a Trustee.
21 interest.
27 documentation.
71
1 understood it and how I
9 it...(INTERJECTION).
16 MS. CORRIGAN: I -- he —
17 I...(INTERJECTION).
21 helpful to you.
72
1 information in writing.
3 I just... (INTERJECTION) .
5 question of giving us
6 unsworn testimony...(INTERJECTION).
8 to...(INTERJECTION).
13 ad hoc way.
19 Thank you.
21 Thank you.
22 A. Thank you.
25
27
28
29
73
YDoJiU.v
G\
Appendix XV (170) Mr Francis Boland
1. Evidence relied upon by the Inspectors in arriving at the conclusion relating to Mr
Francis Boland.
UNDER OATH
accurate transcript of my
Stenographer
PRESENT
MS. MACKEY BL
0'FLYNN EXHAMS
5 8 SOUTH MALL
CORK
I N D E X
WITNESS EXAMINATION
MS. MACKEY
7 starting.
10 and on my right is
14
18
22 the questions.
23
28
4
1 and I will ask now Ms. Cummins how to administer the
2 oath to you.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
5
1 MR. FRANCIS J. BOLAND, HAVING BEEN SWORN, WAS
7 background in business?
14 was...(INTERJECTION).
15 2 Q. The what?
17 3 Q. Yes?
20 4 Q. Yes?
24 North of Ireland.
25 5 Q. Yes?
27 6 Q. Yes?
6
1 of the founder Directors of Cork Communications.
2 7 Q. Of?
4 8 Q. Yes?
6 9 Q. Yes?
9 10 Q. Yes?
12 Chairman of B&I.
13 11 Q. Yes?
15 12 Q. Yes?
17 Company.
20 first?
21 A. Yes.
25 A. That is correct.
27 it?
7
1 opportunity in America to...(INTERJECTION).
4 A. Yes.
6 you first?
10 19 Q. Mr. Collins?
22 were interested.
23 23 Q. In what?
26 of operation.
27 24 Q. Yes?
8
1 25 Q. Yes?
3 RV Parks.
4 26 Q. Yes?
6 is...(INTERJECTION).
9 28 Q. Yes?
11 29 Q. Yes?
14 A. A suitable name.
15 31 Q. Yes?
19 33 Q. By whom?
22 34 Q. Not, "we must have all". What was agreed Mr. Boland
25 35 Q. With who?
26 A. With Collins.
29 37 Q. Mr. Coveney?
9
1 A. And with Mr. Love.
2 38 Q. Mr. Love?
8 A. Mr. Cummins.
12 Kinsale on holiday.
13 42 Q. Yes?
16 of Cummins.
17 43 Q. Yes?
19 44 Q. Yes?
23 Mr. Cummins?
25 46 Q. About this?
29 quite...(INTERJECTION).
10
1 48 Q. What was he -- tell me what he told you the project
2 was?
7 involved?
19 53 Q. Yes?
23 is...(INTERJECTION).
25 1980?
11
1 set up in 1981 and the loan was made by the AIB
2 in 1981?
3 A. Yes .
5 you?
8 relation to this?
14 I felt... (INTERJECTION) .
17 professional help?
27 business.
28 63 Q. Yes?
12
1 64 Q. Yes?
2 A. But I didn't.
7 A. Unfortunately I didn't.
9 A. No, no.
11 your...(INTERJECTION)?
12 A. Craig Gardners.
14 A. All my ...(INTERJECTION).
16 A. Yes.
20 72 Q. Yes.
22 which...(INTERJECTION).
24 A. Yes.
13
1 years ago?
2 A. Yes.
4 this?
12 Chairman.
13 78 Q. Not actually?
14 A. No.
16 correspondence?
22 AIB Bank.
24 Mr. Boland?
25 A. That is right.
27 A. Yes, yes.
14
1 them Chairman.
4 A. That is correct.
6 agreed?
9 87 Q. Yes?
14 guarantee.
24 A. Yes.
15
1 94 Q. Yes. However, who was lending the money?
2 A. AIB Bank.
3 95 Q. In New York?
19 me...(INTERJECTION)?
20 A. Chairman, I signed...(INTERJECTION).
22 you do not know the name of the bank with whom you
24 A. AIB Bank.
26 A. Well, I signed...(INTERJECTION).
29 Mall.
16
1 104 Q. I know that. Are you telling me that you do not
7 know who was the forwarder of the money per say, was
9 106 Q. I did not ask you that. I asked you who you signed
17 108 Q. Does that mean that you think you signed it with
21 behalf...(INTERJECTION).
25 A. AIB Bank.
29 A. Yes.
17
1 112 Q. Tell me what you understood then, that the New York
4 113 Q. To whom?
5 A. Roadhaven.
8 115 Q. Lynbrett?
9 A. Yes.
12 A. That is correct.
14 A. Roadhaven.
15 118 Q. Yes?
16 A. Resorts.
19 sum yourself?
20 A. I was, yes.
23 Chairman.
24 121 Q. US$212,000?
25 A. Yes.
27 A. That is correct.
18
1 A. That is correct.
4 125 Q. Could you tell me how you raised that money, from
8 126 Q. Yes?
10 127 Q. Just tell me what you did? You must have some
14 128 Q. When you said you had shares in the United Kingdom,
19 A. Yes.
20 130 Q. What was the name of that company you had shares in?
23 A. Yes.
19
1 bought some UK stocks.
2 134 Q. Yes?
7 19...(INTERJECTION).
8 135 Q. You are not answering the question Mr. Boland. The
11 of shares I imagine.
14 am I ... (INTERJECTION) ?
17 A. And...(INTERJECTION).
25 securities ?
26 A. Yes, yes.
20
1 English Government Stocks.
2 142 Q. Yes?
3 A. Which I sold.
5 A. Yes, yes.
7 A. Yes, and...(INTERJECTION).
12 147 Q. Yes?
14 but...(INTERJECTION).
21 you know.
26 151 Q. You may have taken money from your business for this
27 purpose?
21
1 A. No, not now, no.
2 153 Q. When you say "not now", you had a record? You had a
3 record of...(INTERJECTION)?
5 yes.
6 154 Q. Yes?
7 A. Yes.
13 share.
15 A. I can't recollect.
19 A. Yes.
27 A. By -- I presume by draft.
28 163 Q. By draft?
22
1 164 Q. Yes?
4 A. Yes.
7 167 Q. Yes?
12 asking?
13 A. Yes.
14 169 Q. The question is: When was the first tranche paid?
18 your recollection?
23 was paid?
26 A. Yes.
27 174 Q. And...(INTERJECTION).
23
1 A. Yes, I presume so, yes.
6 178 Q. No, no, I am not asking you what you must have done.
11 180 Q. You do not know who you sent it on to. How many
14 payments in total.
17 Chairman.
18 182 Q. Yes?
19 A. I want to be careful.
20 183 Q. Yes?
24 to AIB Bank.
24
1 to pay the New York Branch this figure?
2 A. That is correct.
3 187 Q. Yes. The New York Branch of AIB was to get this sum
7 Chairman.
8 188 Q. Well...(INTERJECTION)?
15 A. I know that.
19 I am asking you: Who did you pay this sum to? Was
21 New York?
25 193 Q. Yes?
29 time.
1 194 Q. Who would you have got the request from?
3 195 Q. Yes?
6 196 Q. Yes?
8 ago.
9 197 Q. Yes?
12 moment?
15 in 1977.
16 198 Q. Yes?
19 lot of ways.
21 A. 1977, yes.
26
1 my last tranche of money on my indebtedness and
4 202 Q. Yes?
8 this?
12 205 Q. Pardon?
24 A. It was settled.
29 Chairman.
27
1 212 Q. Who were your attorneys or solicitors?
2 A. I can't...(INTERJECTION).
4 A. Yes.
5 214 Q. Who did you -- you must have been very concerned
7 A. That is right.
9 A. No, no.
11 A. No.
21 A. No.
27 A. No.
29 professional advisors?
28
1 A. No, Chairman.
4 Chairman.
14 230 Q. Sorry?
18 I paid them.
22 A. Acknowledgments Chairman.
24 A. Sorry?
26 A. Correspondence?
27 236 Q. Yes?
29
1 A. Yes, yes.
2 238 Q. What?
3 A. Yes.
5 A. Yes.
7 the AIB Bank, the last payment you made about a year
8 ago?
9 A. No.
11 A. Yes.
13 your indebtedness?
14 A. My indebtedness to them.
16 A. Yes.
18 back?
21 Chairman.
22 245 Q. Yes?
24 I paid...(INTERJECTION).
25 246 Q. No, just the question is: How far does the
26 correspondence go back?
30
1 247 Q. Yes. Who...(INTERJECTION)?
8 250 Q. Yes?
9 A. Acknowledging my payments.
10 251 Q. Yes?
17 A. No problem.
18 253 Q. Yes?
19 A. No problem.
22 A. No problem.
28 in your correspondence.
31
1 A. Yes.
2 257 Q. $50,000?
8 $50,000?
9 A. None.
10 259 Q. None?
12 260 Q. Yes?
13 A. Yes.
17 in $50,000?
19 262 Q. No. You did not lodge $50,000 as far as you were
25 A. Yes.
32
1 A. I could have, yes. I would have...(INTERJECTION).
3 A. Sorry Chairman.
5 A. Sorry.
10 269 Q. Well...(INTERJECTION)?
17 it?
19 Chairman.
25 A. No.
26 274 Q. You cannot recollect who you paid this sum to?
27 A. No, Chairman.
29 London?
33
1 A. No recollection, Chairman.
3 York?
4 A. No recollection at all.
7 A. No.
10 ten minutes?
11 A. Okay.
12 279 Q. If you would like to stay here we can give you a cup
13 of coffee?
14 A. Okay.
16 A. Yes.
17
18 SHORT ADJOURNMENT
19
23 A. Thank you.
25 COSTELLO
26
27
28
29
34
1 MR. BOLAND WAS EXAMINED, AS FOLLOWS, BY MS. MACKEY:
7 on.
8 A. Yes.
19 284 Q. Right. Can you remember what you heard about it?
21 A. I can't.
23 A. I cannot, no.
25 A. I can't, no.
28 established?
29 A. That is correct.
35
1 288 Q. Within this trust?
4 with?
7 A. Yes.
11 was in Cayman.
13 A. Yes.
15 than in Ireland?
17 my understanding of it.
18 294 Q. Yes?
20 together, is my understanding.
21 295 Q. Yes?
23 296 Q. Yes.
36
1 way from this Trust? What was your understanding of
2 it?
5 299 Q. Yes?
8 to us .
9 300 Q. How were you to get the share? How was the share to
14 company Medford?
18 in this?
21 the US investors.
25 shareholdings.
37
1 anybody. All I know is that I personally paid for
2 my share.
4 documentation?
8 307 Q. Yes?
12 308 Q. Yes?
14 309 Q. Yes?
19 Medford?
20 A. No.
21 311 Q. No?
22 A. No.
38
1 discussions with your fellow investors? Did you
4 recollection.
9 315 Q. Yes. How did you come to know Guinness & Mahon?
12 316 Q. Yes?
13 A. In Cork in particular.
14 317 Q. Yes?
16 318 Q. Yes.
23 320 Q. Right?
26 deal with?
28 of Howard, in Cork.
29 322 Q. Howard?
39
1 A. And then he died.
2 323 Q. Yes?
9 A. Yes.
18 yes.
24 me.
27 papers.
40
1 333 Q. Did you meet Mr. Traynor frequently on a social
2 basis?
3 A. No, no.
5 A. No, no.
6 335 Q. Never?
7 A. No.
15 remember who told you about it. You know that one
19 A. Yes.
21 A. Yes.
23 profits but you are not sure how that was to come to
24 you?
25 A. Yes.
28 evidence?
41
1 342 Q. Did none of this worry you or make you feel that you
3 structure?
6 who I trusted.
10 A. Yes.
17 did.
23 A. Yes, yes.
29 operation?
42
1 A. I am aware it was a Guinness & Mahon operation.
4 A. I was, yes.
16 that...(INTERJECTION)?
20 A. No.
8 A. No, no.
10 A. Yes.
11 362 Q. How were you told that this company was to operate
23 A. Yes.
26 didn't...(INTERJECTION).
44
1 A. Yes.
2 368 Q. You must have realised you would have to hold the
9 370 Q. Yes?
12 371 Q. Yes?
13 A. You know.
17 A. Yes.
20 others?
22 375 Q. Yes?
27 A. Yes.
29 A. Yes.
45
1 378 Q. Yes. I have no further questions. I think
3 more.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
46
1 MR. BOLAND WAS RE-EXAMINED AS FOLLOWS BY MR. JUSTICE
2 COSTELLO:
6 Mr. Boland?
7 A. Yes.
10 A. That is correct.
16 382 Q. Yes?
18 just...(INTERJECTION).
22 (INDICATING).
23 384 Q. Yes?
28 Sandra Kells?
47
1 386 Q. No, no. You got copies. They were not given to us.
3 A. Sorry.
5 A. Certainly, yes.
7 A. Yes, certainly.
12 391 Q. When you say you presume, did you look at the files?
20 files.
22 Mr. Boland?
23 A. Yes.
28 office closed?
29 A. I can't.
48
1 398 Q. Was it recently? Was it in the -- perhaps
7 ago.
14 A. No.
17 401 Q. Yes?
20 402 Q. I see?
22 foreign drafts.
23 403 Q. Yes?
24 A. For my business.
25 404 Q. Yes?
27 hefty file.
28 405 Q. Yes?
49
1 that you purchased.
2 406 Q. Yes?
5 407 Q. Yes?
8 was a ...(INTERJECTION).
15 A. Yes.
17 A. Yes.
18 411 Q. Did you ever deposit money with Guinness & Mahon?
25 A. No, no.
50
1 because in Mr. O'Flynn's letter to you he said
5 416 Q. Yes?
11 moment?
14 418 Q. Is this the file you obtained from Guinness & Mahon?
16 419 Q. Yes?
18 420 Q. Yes?
22 Chairman.
26 A. Yes .
28 file?
2 A. No, no.
3 425 Q. I think we better have all the files that you got
7 426 Q. Yes?
10 Mr. Boland?
19 A. Yes .
26 the record.
28 A. Yes .
29 430 Q. Yes?
1 A. I had -- going back to the late 1980's I was subject
3 431 Q. Yes?
7 a better word.
8 432 Q. Yes?
20 the...(INTERJECTION).
23 UDT shares.
24 434 Q. Yes?
27 was...(INTERJECTION).
29 done?
53
1 A. In the Lynbrett Trust business, yes.
7 had?
17 A. No.
20 441 Q. Yes. Ask them did you supply them with any files or
22 Lynbrett Trust?
23 A. Yes.
27
29
54
V w ^ GmvmwUC
^OVlk.i-Vor*
1 C^ ^
Appendix XV (170) (1) (b)
•R
I am in receipt of your letter of the 6 t h inst. herein and I note the contents thereof.
I refer to your letter of the 10th January last and in particular to the lodgement of the sum
of US$50,000 referred to in the penultimate paragraph thereof and the queries raised in
thefinal paragraph in relation thereto.
Frank O'Flynn Fachma O'Driscoll Denis P. Cahalan Michael A Bolger Irene O'Donovan Eamonn P. Muldoon Richard Neville
Roiy W Collins Peler Klrwan Jonathan While Brona McNamara Michael P. 6 MullSIn Cliona O'Rourke
Consultants: Brian W Russell A.C I Arb Nlall Cronln
lanspan Dublin Office:
international 17 Upper Pembroke S t , Dublin 2. Tel (01) 6311657 Fax (01) 6789549 Email: olexdub@indigo ie
O'Flynn Exhams & Partners 22nd March 2000
OurRef: FOF/AOD
770289
George Town,
Grant Caynan
770271
o
Petoetuifcy Date deal with the Income of cha Trust
Fund or so much thereof is shall not be paid or
apolied as aforesaid by accumulating the same as an
accretion to the capital of Che Trust Fund.
5. In default and subject as aforesaid the Trustee .shall
stand oossassed of the capital and income of Che Trust Fund upo
trust for such of the Beneficiaries as shall be in existence
immediately before the Perpetuity Date if more Chan one in such
share as it shall think fit in its absolute discretion or if
there shall be no such person then uoon Crust for the charitabl
institution named in the second schedule hereto absolutely.
8. The Trustee shall have and may exercise at its absolute
discretion at any time or times and from time to'time power to
pay or apply Che"whole or any part or parts of the Trust Fund
to'or for the advancement or benefit of all or any one or more,
exclusively of the others or other of Che Beneficiaries in such
manner as the Trustee shall in its absolute discretion without
being liable to account for Che exercise of such discretion
think fit including the purchase of an annuity tor any
Beneficiaries but so that the Trustee may at any tine* but at its
absolute discretion raleese this present power in whole or in
>-!*•} no-to Q
Trustee so long as the Trustee shall think oroo«r
• without being answerable for any loss occasioned
thereby.
(ii) To sell alienate or otherwise dispose of all or
any property at any time forming part of the Trust
Fund in such manner by public or private treaty an
for such price in money or other consideration
and on such conditions as the Trustee may think
prooer and. to receive the consideration price and
gTant discharges therefor.
(iii) To exercise, all the voting oowers attaching to
anv shares stock debenture or other securities
(hereinafter called "securities") at any time
forming part of the Trust Fund.
(iv) To exchange property for other property of a like
or different nature and for such consideration
and on such conditions as. the Trustee may consider
advisable.
(v) To comoromise and settle for such consideration
and upon such terras and conditions as the Trustee
may consider advisable, all matters arising in
relation to the trusts hereby created or the Trust
Fund and all such compromises and settlements
shall be binding on all the Beneficiaries.
(vi) To surrender and deliver up any securities forming
part of the Trust Fund for suh consideration and
upon such terms and conditions as the Trustee
may aporove to any company or corporation reducing
its capital and the Trustee may receive such
consideration in the form of cash securities or
other assets as may be agreed between the Trustee
and such other corporation.
(vii) To consent to any re-organisation or re-constructi
of any company or corporation the securities of
which* form part of the Trust Fund and to consent
to any reduction of capital or other dealings
with such securities as the Trustee may consider
advantageous or desirable.
(viii) To invest or lay out any moneys forming part of
the Trust Ft:nd or the proceeds of sale without
regard to the provisions of The Trusts Law (Law
6 of 1967) or any Act passed in amendment thereof
or in substitution therefor in the purchase cf
or at interest upon the security of such stocks
runes siiares or* securities or other investments
or property movable cr immovable of whatsoever
nature and situated anywhere in the world and
whether in possession or. reversion (including
770273
Che purchase of any freehold or leasehold land
with*or without any house or other buildings thez
. or plant or live or dead stock or chattels'for
the beneficial occupation use or enjoyment of
any Beneficiary or Beneficiaries ana including
any oolicy of assurance on the life of any person
or any endowment or other policy and the oavment
of the premiums in respect thereof) and whether
in the name of the Trustee or in the names of
nominees or in any other manner giving the Truste
control of the .same or upon such oersonal credit
with or without security as the Trustee at its
absolute discretion shall think fit and in additi<
(but without prejudice to the generality of the
powers hereby given) trust moneys may be laid
but in paying for any improvement addition alterat
demolition amendments cleaning repair
' to or of any house or other building or chattels '
for the time being forming part of the Trust Fund
to the intent that the Trustee shall have the
same full and unrestricted power of investing and
varying investments and property in all respects
as a beneficial owner (including all the powers
of a beneficial owner as regards charging' leasine
management and otherwise in rescect of any
freehold or leasehold property including surrender
in.g or dealing With any policy of assurance
forming part of the Trust Fund).
n M fi n w i j A
or rule of law regarding investment by trustees
and the making of such investments shall in no
event be construed as a breach of trust and in
that connection without limiting the generality
of the foregoing to invest the Trust Fund or any
part thereof in any partnership limited partnershi
joint venture or association and to be able to
have and exercise all the powers of management
and participation in the management necessary
and incident to an investment in such partnershio
limited partnership or other venture including
the incurring of joint and several liabilities
with other members and the making of any election
available under any tax law by such partnership
or venture and at any time to participate in the
incorporation of any such partnership or vednture
to ooen accounts margin or otherwise with brokerap
firms banks or other wheresoever in the world
to invest the funds of the Trust Fund in and to
conduct maintain and operate such accounts directl
or through an agent for the purchase sale and
exchange of commodities stocks bonds end other
securities and in connection therewith to borrow
money obtain guarantees and engage in all other
activbities necessary or incidental to conducting
maintaining and operating such accounts.
770275 ,^
(xiv) Generally Co perform all acts of alienation
• hypothecation and other acts of ownership to the
sarae extent and with the' sarae effect as the Trustei
might - have done if it had been the beneficial
owner and the decision and action of the Trustee
whether actually made or taken in writing or imoli«
from the acts of the Trustee shall be conclusive
and'binding on all the Beneficiaries.
(xv) To erect buildings on and effect improvements
to any property forming oart of the Trust Fund
and also to conduct farming operations on and
. lease all or any part of such-property.
(xvih To institute and defend proceedings at Law and
to'oroceed to the final end and determination
thereof or compromise the same as the Trustee
shall consider advisable.
(xvii) To incorporate any company or companies in any
place in the world at the expense of the Trust
Fund with limited or unlimited liability for the
purpose of (inter alia) acquiring the whole or
any part of the Trust Fund the consideration on
the sale of the Trust Fund or any part thereof
to any company incorporated pursuant to this sub-
clause may consist wholly or oartly or fully paid
debentures or debenture stock or other securities
of the company and may be credited as fully oaid
and may be allotted to or otherwise vested' in •
the Trustee and shall be capital moneys in the
Trus tee1s hands.
(xviii)To exercise or concur in exercising the voting
and other.rights attaching to any securities for
the time being forming part of the Trust Fund
so as to become a director or other officer or
employee of any company and to be entitled to
vote and to be' oaid" andi to retain for the Trustee's
use and benefit reasonable remuneration for the
Trustee's services.
(xix) To borrow money whether on security of the Trust Fui
or otherwise at any time and from time to time and
pay or apply the money so raised in any manner in
which money forming part of the capital of the Trus
Fund may be paid or applied, and to execute and del:
such security documentation for said loans as may
from time to time be required.
(xx) To deposit the securities title deeds and other
documents belonging or relating to this Trust for
safe custody with any bank.
(xxi) To hold any part of the Trust Fund in the name or
the names of any nominee of the Trustee.
77H97P; 1 A
(sccii) In the event t h a t income or c a p i t a l s h a l l become
d i s t r i b u t a b l e to a minor beneficiary or t o a
• b e n e f i c i a r y under other l e g a l d i s a b i l i t y or
t o a b e n e f i c i a r y not adjudicated incompetent
by reason or i l l n e s s or mental, or onysica'i-
d i s a b i l i t y i s i n the opinion of the Trustee unable
properly "to administer such amounts then such
amoxmts may be paid out by the Trustee i n such
one or more of the following ways that the Trustee
s h a l l deem b e s t ( i ) d i r e c t l y to the s a i d b e n e f i c i a r
( i i ) t o the l e g a l l y appointed guardian or committee
of such b e n e f i c i a r y . ( i i i ) to a parent or some
r e l a t i v e or f r i e n d for the cere and support and
education of such beneficiary or ( i v ) by the Truste
u s i n g such amounts d i r e c t l y for- the b e n e f i t of
such b e n e f i c i a r y end as regards ( i i ) and ( i i i )
without having t o see to the a p p l i c a t i o n thereof
and the r e c e i p t of any such d i s t r i b u t e e s h a l l
c o n s t i t u t e a f u l l r e l e a s e and discharge of the
Trustee.
(xxiii)In the event of any income orobate estate or other
duties fees or taxes becoming payable in the Cayman
Islands or elsewhere in respect of the Trust Fund
or any part thereof on the death of any Beneficiarv
or otherwise at its discretion to pay all or any
oart of such duties fees and taxes out of the
Trust Fund without recourse against any beneficiarv
or to refuse to pay the same or any part thereof
unless indemnified and to determine the time anc
manner of such payment (if any)-
10. Notwithstanding any of the trusts powers and provisions
herein contained the Trustee shall have power at any time
or times before the Perpetuity Date at the absolute discretion
of the Trustee by any irrevocable deed or deeds and. without.,
infringing the rule against perpetuities to apppoint that
the whole or any part of the Trust- Fund shall thenceforth
be held upon the 'trusts and with and subject to the oowers
and provisions of any other trust (including this present
proviso) not infringing the rule against perpetuities applicabl
to this trust and approved, by the Trustee and ir. favour or
for the benefit of all or anv one or more exclusively of the
others or other of the Beneficiaries and upon any such appoint-
ment being made the Trustee may transfer to the trustee or
trustees for the time being of the said other trust the prooert
comprised in the said appointment and thereupon the trusts
herein declared concerning such property shall cease and
determine and the said property shall for all purposes be
subject to the trusts powers and provisions contained in the
said other crust and be subject to and be governed by the
proper law of the said other trust whether such proper law
shall be the proper law of this trust or not.
11. Notwithstanding any of the trust powers and provisions
herein contained the Trustee shall have power at any time
770277 1 A.
• -R*
} 12. The Trustee shall keep accurate accounts of its trus tea shit
and may have them audited annually at the expense of the Trust
Fund or the income thereof as the Trustee shall determine
by a firm of accountants selected by the Trustee.
• •.
13. The customary expenses in connection-with the adminis-
tration of this trust including the remuneration and charae
of the Trustee hereinafter provided for and of the investment
•1 and reinvestment of any part of the Trust Fund and the collectic
of income and other sums* derivable therefrom shall be charged
(•' against the income of the Trust Fund but if such income is
Ii insufficient for that purpose then the same shall be charged
against capital or so much of the capital as may be reouifed
I in addition to the income, for that purpose.
i
14. The Trustee may appropriate any part of the Trust Fund
in the actual state or* condition of investment thereof at
the time of appropriation in or towards satisfaction of the
j share of any person in the Trust Fund as to the Trustee may
I seem just and reasonable according to the respective rights
j of the persons interested in Che Trust Fund.
I
I
i
| 15. (1) Any Trustee being a trust company or corporation
\ shall be entitled to charge and be paid out of
the Trust Fund and She income thereof remuneration
! in accordance with its scale of fees now and from
' <7rfMOr/fi rr
time to time in force and may without accounting
for any resultant profit act as banker and perfor
any service on behalf of the Trust estate and
on the same terms as would be nade with acustome
(ii) Any Trustee being a lawyer chartered accountant
or other person engaged in any profession or busii
shall be entitled to charge and be paid all usual
professional and other charges for business
. • . « ^ _ —J —^ . I. «_ •
1 ~7
or encroachments of any Beneficiary or be subject to any
assignment or any other voluntary or involuntary alienation or
disposition whatsoever prior to the distribution of all or par-
of the said income to that Beneficiary.
23. The Trustees shall have the power to lend, with or without
security, and upon such terms and conditions as the Trustees maj
determine, to any of the Beneficiaries named in The First Schedi.
attached hereto.
IN WITNESS WHEREOF this Deed has been duly executed the day and
year first before written.
770281
THE FIRST SCHEDULE
7702S2
Appendix XV (170) (2) (a)
A O'Flynn Exhams & Partners
i'i:lt ,)»'•>»« -I'J,'
Fnc-jimilo (021) 4 i : CM.-
Fnviil: .!iH:.!i::.t'!
•7
Dear Inspectors,
We refer to your letter of the 31 st July to Mr Boland and in particular to the document
entitled "Inspectors Preliminary Conclusions re: Mr Francis Boland" enclosed
therewith.
1.
2 & 3 We confirm that the content of 2 and 3 is materially correct, but that some
readjustment of the order of events would be preferable. Our suggestions are as
follows:-
"4. Mr Boland was a Client of Ansbacher to the extent only that he was
intended to be entitled to be the beneficial owner of a Company
(Medford Investments Limited) which was, or was intended to be^a
potential beneficiary of the Lynbrett Trust of which GMCT was
Trustee".
We would be obliged if you would consider the foregoing before concluding the Inspectors
Preliminary Conclusions.
Yours faithfully,
19391/1 I/6846LT-ID
. OC
Appendix XV (171) Mr Patrick J Dineen
1. Evidence relied upon by the Inspectors in arriving at the conclusion relating to Mr
Patrick J Dineen.
UNDER OATH
accurate transcript of my
Stenographer
PRESENT
PARTNERS SOLICITORS
5 8 SOUTH MALL
CORK
INDEX
MR. ROWAN 35 - 49
14
19
4
1 MR. PATRICK DINEEN, HAVING BEEN SWORN, WAS EXAMINED
14 2 Q. Yes?
17 A. Okay.
21
22
24 A. Yes .
26 A. Yes .
28 in 1980?
5 this."
10 them.
11 10 Q. However... (INTERJECTION)?
14 A. I think so.
15 12 Q. Yes?
16 A. I am not sure.
18 that year?
19 A. I can't.
20 14 Q. Yes. Well...(INTERJECTION)?
23 or what?
25 you know.
26 16 Q. Yes?
27 A. I don't know.
29 A. I am not sure.
6
1 18 Q. You are not sure?
5 conversation?
7 20 Q. Yes?
12 21 Q. Well...(INTERJECTION)?
13 A. Subsequently.
14 22 Q. Do...(INTERJECTION)?
18 an Irish American.
19 24 Q. Yes?
21 25 Q. Yes?
24 26 Q. Yes?
26 27 Q. Yes?
7
1 29 Q. It would have been likely then that it would have
3 these conversations?
7 30 Q. Yes?
10 A. Yes .
14 is that it?
16 me.
19 A. He did.
24 35 Q. Yes?
27 36 Q. Yes?
2 involvement in it then?
5 running it.
7 A. No.
8 39 Q. Yes. Well...(INTERJECTION)?
10 40 Q. Yes?
12 41 Q. Yes?
13 A. He was in Ireland.
14 42 Q. I see. Then:
18 A. No.
19 43 Q. The idea was that you and Mr. Collins and Mr. Boland
9
1 this.
2 45 Q. Yes?
9 A. Yes.
12 48 Q. Yes?
14 49 Q. Yes?
16 50 Q. And...(INTERJECTION)?
18 it.
27 52 Q. Yes?
10
1 Mr. Collins and Mr. Boland?
4 A. Yes, I...(INTERJECTION).
10 56 Q. Yes. Then...(INTERJECTION)?
11 A. Unfortunately.
12 57 Q. You must have known then, you must have been told
14 in it?
21 59 Q. Yes?
25 in New York, who had vetted the deal with Jones Lang
28 up $100,000.
29 60 Q. Yes?
1 A. So, were there five of us? Collins, Boland, Dineen,
3 61 Q. Yes?
6 62 Q. Yes?
9 63 Q. Yes?
23 told about the New York branch. You were told about
29 merely told that this was the way the business was
12
1 going to be done and the other thing was that we
6 65 Q. Yes?
9 66 Q. Yes?
11 67 Q. Were...(INTERJECTION)?
12 A. At least I did.
14 A. No.
18 70 Q. Yes .
23 You had been told about this venture and you were
28 your company?
13
1 which one but I think those companies -- (Same
5 frankly...(INTERJECTION).
9 A. Yes.
11 know?
12 A. I don't know.
13 74 Q. Yes?
16 that to be correct.
18 A. No, no.
20 A. I imagine so.
21 77 Q. Yes?
23 78 Q. Yes?
26 79 Q. Yes?
28 80 Q. Yes?
29 A. Really.
14
1 81 Q. Yes?
4 stage?
7 A. No.
9 A. No, no.
12 advising you?
13 A. No.
14 86 Q. Did you...(INTERJECTION)?
16 I...(INTERJECTION).
19 A. No, never.
20 88 Q. Never?
21 A. No.
22 89 Q. And...(INTERJECTION)?
28 90 Q. Sorry?
15
1 at the time.
7 A. Oh dear.
9 A. Peter Tuite.
14 94 Q. Yes?
17 95 Q. Yes?
21 96 Q. Yes?
25 A. No.
26 98 Q. Before this?
27 A. No, never.
29 A. Yes.
16
1 100 Q. That was separate?
4 101 Q. Yes?
6 102 Q. Yes .
15 A. Yes .
16 104 Q. You were told then that Mr. Collins was involved in
18 assist?
19 A. Exactly, yes.
20 105 Q. Had you been told when you were first introduced
27 106 Q. Yes?
2 A. Yes.
4 view of investing.
5 "They visited..."
10
11
12 A. Yes.
19 A. No, I wasn't.
22 told.
25 113 Q. This would have been some time, you think, probably
18
1 Jones Lang Wootton and I think he was really vetting
2 the security.
3 114 Q. Yes?
5 115 Q. Yes?
10 that.
13 118 Q. Yes?
15 119 Q. Yes?
18 120 Q. Yes?
19 A. Yes.
22 Did you know Mr. Traynor? Had you met Mr. Traynor
23 then?
25 122 Q. Yes. Were you told about the structure that was set
26 up?
19
1 point for me. I didn't know that.
3 established?
7 A. Yes.
8 125 Q. I am just wondering did you get any -- did you ever
11 126 Q. Not at that stage. However, later did you see it?
15 A. There was.
17 A. Yes, yes.
19 established a trust?
24 Mr. Dineen?
28 132 Q. Yes?
20
1 133 Q. Yes?
3 I should have.
5 trust?
8 A. The only reason I was given was that it was the tax
10 view.
11 136 Q. Yes?
14 and that the vehicle that had been set up, prior to
17 137 Q. Yes?
20 Mr. Dineen?
22 139 Q. I think you must have been mistaken about that. You
24 A. I imagine so.
27 A. No, I wasn't.
29 A. No.
21
1 142 Q. Did the question of the use of this mechanism for
3 A. No, it didn't.
10 made it.
18 147 Q. However, you thought that -- you did not in any way
21 A. No, I didn't.
24 Americans.
25 149 Q. Yes?
27 150 Q. Yes. You did not discuss with anybody that this was
22
1 loss eventually manifested itself, I sought to
4 tax...(INTERJECTION).
6 A. Sedgwick Dineen.
7 152 Q. Yes?
9 part of it.
10 153 Q. Yes?
12 154 Q. Yes?
15 155 Q. Yes?
18 156 Q. Yes?
25 Roadhaven.
26 158 Q. Was the investment not through the trust. Was the
27 trust then...(INTERJECTION)?
28 A. Our investment.
29 159 Q. Sorry?
23
1 A. Our investment, the Irish partners. As I understand
5 1) •
6 160 Q. Including yourself?
7 A. Yes .
11 A. No.
24 165 Q. Originally was the idea that you would each have one
26 A. Originally, yes.
29 A. Well, I...(INTERJECTION).
1 167 Q. One tenth then, is that it?
4 A. A ninth.
5 169 Q. Yes?
7 not.
8 170 Q. Yes?
10 eventually.
13 A. Exactly.
14 172 Q. Then which ever company you owned then you had a
18 173 Q. Yes?
23 first page:
26
27
29 A. Yes.
25
1 175 Q. Yes?
3 17 6 Q. And:
6 A. Roadhaven.
7 177 Q.
10
15 A. Exactly.
17 A. Yes.
22 A. Yes.
26 182 Q. Yes. Then, Mr. Coveney, over the page then, goes on
27 to say:
26
1 This is what you are referring to as the figure?
5 or...(INTERJECTION).
9 184 Q. Well...(INTERJECTION)?
11 185 Q. Yes?
14 186 Q. Yes?
23 could...(INTERJECTION)?
25 a bit confused?
28 A. No, no.
27
1 if there are defects, it
4 yourself Mr. Dineen how much money you put in? Was
5 it $100,000 or £100,000?
15 no.
20 196 Q. Yes?
21 A. And they are all here. One second now. Just bear
4 down in Arizona.
5 197 Q. Yes?
9 198 Q. Unsecured?
15 199 Q. Yes?
19 there?
22 had to be correct.
23 201 Q. Yes?
24 A. So, it is correct.
26 A. Yes .
28 A. Yes .
29 204 Q. And...(INTERJECTION)?
1 A. Only payment.
2 205 Q. Sorry?
5 A. Yes.
6 207 Q. Can you just tell me can you recollect how that
13 208 Q. Yes?
15 209 Q. Yes?
20 transmission to Roadhaven.
21 210 Q. Yes?
23 211 Q. Yes?
26 212 Q. Yes?
28 $100,000.
29 213 Q. However, I just want to understand: You gave the
30
1 initial $50,000 by what, by way of draft or how was
4 send it to...(INTERJECTION).
5 214 Q. To Dublin?
14 216 Q. Yes?
17 A. I had, yes.
18 218 Q. Yes?
20 219 Q. Yes?
22 220 Q. Yes?
4 223 Q. Yes?
6 London.
7 224 Q. Yes?
8 A. Ever.
12 (Same Handed)?
13 A. Thank you.
15 A. Yes.
17 (Exhibit 2)?
18 A. Yes, 1973.
21 account is:
24
27 A. Yes.
32
1 A. It is the first time I have ever seen that.
2 230 Q. Yes?
5 A. No.
6 232 Q. No?
8 233 Q. Yes?
13 A. Yes.
15 A. Yes.
17 A. £100 Chairman.
23 concerned?
28 A. Okay.
33
1 A. Of course, yes.
2 240 Q. You can stay here and we will be back in about ten
3 minutes?
9 SHORT ADJOURNMENT
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
34
1 MR. JUSTICE COSTELLO: We will resume Mr. Dineen.
2 I am going to ask
4 A. Yes.
7 MR. ROWAN:
12 A. Yes.
15 A. Yes.
18 A. Yes.
21 A. Yes.
22 245 Q. Can I just go through that with you again? You said
27 A. Yes — no...(INTERJECTION).
35
1 AIB in New York was kind of central to this in that
5 247 Q. Yes?
19 Cork.
36
1 Cork and said, "Look, we have agreed this facility
9 year.
10 250 Q. Leaving aside why on earth the Bank might think this
14 A. Yes.
17 guarantee.
37
1 reasonably valued customer.
7 have suggested that this was the way the bank wanted
10 A. Please, sure.
18 I think he arranged...(INTERJECTION).
19 256 Q. However, you would have had to, would you not?
20 A. But... (INTERJECTION) .
22 documentation?
26 $50,000.
28 with something?
38
1 it was that he sent it to Guinness & Mahon in Dublin
6 $50,000...(INTERJECTION).
7 259 Q. Sorry?
8 A. Yes.
10 A. Sorry.
23 A. Yes.
27 266 Q. Yes?
29 267 Q. Yes?
39
1 A. And I think I was told that this money had to be
10 268 Q. In fact the first $50,000 may well have never gone
15 269 Q. Okay. You feel that that was done at the same, on
18 A. Yes.
27 that...(INTERJECTION)?
29 272 Q. They would perhaps, when you think about it, have
40
1 been more likely to have been dollar guarantees
3 A. Yes, exactly.
5 A. Exactly.
13 it well.
19 pay up.
24 279 Q. Yes?
27 sent it to you.
9 A. Yes.
12 think.
13 A. Well, I can assure you its there and we can let you
14 have it.
21 settlement document of
23 sent up.
26 document.
28 please?
42
1 any way.
4 the Manager you dealt with the two issues: One was
6 A. Yes .
7 2 31
i Q. And the second was the joint and several guarantees?
9 282 Q. All right. Can you recall when, to the best of your
23 going to be successful.
28 A. Yes .
29 2 34
i Q. Do you know whether that was after the project had
1 started? I mean had the bank advanced the $2.77
5 A. Well, I mean...(INTERJECTION).
6 286 Q. You told us that you first heard about this in the
11 287 Q. Around?
12 A. 1980.
14 A. Yes .
2 A. Sorry.
18 A. Exactly.
20 A. Yes .
23 296 Q. Yes?
2 was defective.
3 297 Q. Yes?
9 for £15 million. Now, the bank did not tell us this
13 298 Q. Yes?
28 299 Q. Yes?
46
1 bank contributed to the settlement and what happened
10 A. Yes .
12 Trust?
15 shares in Roadhaven?
16 A. Presumably.
21 Lynbrett Trust?
22 A. Never, no.
24 A. No.
28 at all, ever.
5 Ireland?
19 308 Q. Have you asked the bank if they have any records?
23 because...(INTERJECTION).
27 A. No, no. What they have done is they have said that
29 sorry.
1 311 Q. The bank in New York said they lent you $50,000?
3 Commissioners.
4 312 Q. Yes?
5 A. In 1993.
6 313 Q. Does the bank in New York say when in 1980 they lent
13 A. Yes.
14
16 MR. ROWAN
17
18
19
20
21
22
23
24
25
26
27
28
29
49
1 MR. PATRICK DINEEN WAS EXAMINED AS FOLLOWS BY
5 Mr. Coveney to
6 us...(INTERJECTION)?
7 A. Dineen.
15 A. Yes.
21 position?
50
1 MR. JUSTICE COSTELLO: Yes.
3 previously to 1994.
4 A. Unfortunately.
11 information to you.
16 the Revenue?
17 A. Yes .
19 A. Exactly.
22 Commissioners ?
23 A. Yes .
25 A. Absolutely.
29 324 Q. We have not got it. You can get it to us, can you?
1 A. I can, of course, yes.
25 A. Yes .
27
29
52
SddxJ^or
VbvxW^
Appendix XV (171) (1) (b)
/srfrtfv Private i ml fTmtfihntfrf
ax
Lynhrett was to participate in 50M GffcejrofiJslhmlfcedewdoiM^
loans). The U^S. investors were entitled to the other50%. It was envisaged that the group
would involve itself in other similar property opportunities and a second project, Bullhead City,
was under active consideration.
In addition to tie AIB. borrowing of S2.775m the lynbrett Tftst was also required to put up
$950 000 in the initial development, My«hawofthatamountadto$2125<»(22%).I negotiated
a venture capital type miaugemcat with Desmond Traynor actingfig Quinocii Mahon Cayman
Trust Ltd. That arrangement involved G. M. Cayman Trust providing a loanftrility of up to
$500000 to Eclipse Holdings Ltd. for the purpose of investing in the Lynbrett Trust
Eclipse Holdings was entitled to it's share (approx. 22%) of Lynbrett's profits. Eclipse was
owned by G. M. Cayman Trust and it hadtorepay O. M. C. T. the amount loaned together with
40% of Eclipse's share of Lynbrett's profits. This 40% profit share was in lien of interest. ID
exchange liar my personally guaranteeing £50 000 sterling of Eclipse's borrowings I was given
an optiontoacquire all of the shares in Eclipse at par (£S<J) as soon as the amount loaned to
Eclipse bad been repaid together with the 4Q% profit share. This structure made good
commercial sense for me in that it limited myfinancial exposure while entitling me to 60% of
Eclipse's profits. Unfortunately events conspired to ensure that I never acquired Eclipse
Holdings.
Despite tie attractive projections and extensive due diligence carried out by AIB and ourselves
the enterprise ultimately turned out to be an unmitigated disaster and an absolute nightmare for
the other Irish participants and mysel£ Roadhavenfiled for bankruptcy in 1985; the securities
put in place against our borrowingsftom AIB by AIB's lawyetrs proved to be defective and
practically worthless andwe were left fight^&riumb«ofac*niistottf to
AIB New York called on the guarantors, by letter dated February 18th 1986, to pay, within 30
days,fite sum of $2 527 730. A protracted and publidsediisputefollowed between AIB, their
lawyers and ourselves which was ultimately settled out of court late in 1993. That settlement
involved each of thefive of us in net payments of pnSftcally $400 000 (spread over six
instalments). To add to our misery one of the five,' was unable to meet Us
commitments imder the terms of the guarantee and the otherfour have had to pay his share as
well which brings the overall cost for each of the four 19 to practically S500 000. (S2.4m to
AIB less $425000from lawyers.)
G. M. Cayman Trust called on my £50000 sterling guarantee by letter dated August 14th 1987
and I paid it, in Irish Pounds, in October 1987. To do so I had to sell 50000 shares in Ann
Energy. I endorsed die IR£ chequefrom Stockbrokers Goodbcdy lames Capel and sent it to
Desmond Traynor with a covering letter, bothfor transmission toG.M. Cayman Trust. Receipt
was acknowledged by letterfrom G. M. C. T. dated October 29th 1987.
aa
A O'Flynn Exhams & Partners
Solicitors
"""'*• 58 Suuih Mall, Cork.
Telephone-(021!-127 7738
Facsimile (021) 427 2117
iimail: ofexcoik'G'incJitjo.ie
STRICTLY PERSONAL
The Inspectors
Office of the Inspectors
Third Floor .tit #
Trident House " f W ^ 4ljl(
Blackrock
CO DUBLIN
Dear Inspectors,
We refer to your letter of the 18 th July to Mr Dineen and in particular to the document
therewith entitled
Paragraph Two.
With reference to this paragraph it is stated in the third sentence thereof that "The Trust
had as beneficiaries five Cayman companies, representing the interests of thefive Irish
members of the consortium." The only evidence available of the structure of the
Lynbrett transaction is contained in the Memorandum prepared in January 1998 by the late
Mr Hugh P. Coveney in which he indicated that, "The beneficiaries Lynbrett Trust were
to be five registered Cayman Islands companies. I would be given an option to
acquire one of these companies, [ ] Ltd. on terms which I shall outline later."
There was no documentation or other evidence available to show if these options were ever
put in place and Mr Dineen's uncertainty about the name of the company to represent him
would suggest that an option for Mr Dineen may not have been put in place at all. We
would therefore suggest that the final two sentences of the second paragraph be omitted and
that in lieu thereof the following sentence be inserted:-
"The beneficiaries of the Lynbrett Trust were to be five registered Cayman Islands
Companies and it was intended that Mr Dineen would be given an option to acquire
one of these Companies. Mr Dineen was uncertain as to the name of the Company
intended to represent his interest but other information available to the Inspectors
suggest that it was Overseas Nominees Limited."
Paragraph 3.
This appears to be in order.
"The Inspectors conclude that Mr Dineen was a Client of Ansbacher only to the extent
that he was intended to be beneficially entitled to the interest held by Overseas
Nominees Limited in the Lynbrett Trust of which CMCT was the Trustee. There was
no evidence to show that Mr Dineen was an Ansbacher Depositor".
We would be obliged if you would consider the foregoing.
As you will appreciate our Client's concern arises from the prospect that the Inspectors
Preliminary Conclusions will find their way into the hands of the Media as has occurred in
respect of other similar documents in recent times. The simplistic conclusion "That Mr
Patrick Dineen was a client of Ansbacher" would be seized upon by the Media, even
though same is qualified in the Inspectors Preliminary Conclusions - the Media would, if
2729l/l/68<MLT-l.DOC
given the opportunity, conclude that Mr Dineen was an Ansbacher Depositor which Mr
Dineen was not and has consistently confirmed. In short, he would be perceived in the
public domain as being untruthful. It is extremely important to Mr Dineen that his good
reputation be maintained. His standing in the business community is such that anything
relating to Ansbacher would involve publicity.
Yours faithfully,
"^-vr
2729 l/l/G844LT-1.DOC
Appendix XVI
(c) Letter dated 22 June 2001 from Barry B Benjamin to Tony Traynor
(g) Examples of Hamilton Ross headed paper with Ansbacher's address and
phone/fax numbers
(i) Letter 4 January 1993 seeking £20,000 for B.E.L. Secretarial Services;
Letter dated 18 February 1993 seeking £50 payable to Kentford Securities Ltd
Letter 15 March 1993 seeking a cheque for £10,000 payable to Bank of Ireland
(j) Letter from Central Bank confirming that Hamilton Ross did not have a licence
Appendix XVI (a)
HAR-26-Ot HON 04:57 PM
(1) I am a director of Hamilton Ross Co. Limited ("Hamilton Ross") by which I am duly
authorised to make this Affidavit in opposition to an application that Ansbacher (Cayman)
Limited ("ACL'1) has made to this Honourable Court requesting a declaration under Sections
3(2)(b)(v) or, alternatively, a direction under Section 4 of the Confidential Relationships
(Preservation) Law (1995 Revision) ("the Law") to divulge the confidential information set
out in the Schedule to ACL's Summons dated l s l February, 2001. Hamilton Ross has been
served with notice of ACL's application.
(2) I crave leave to refer to my Affidavit dated?*4 March, 2001 filed in this Cause on behalf of
Poinciana Fund Limited and Worldwide Management and Consultancy Services Limited.
On behalf of Hamilton Ross, which has been served with the application, I adopt the reasons
set out in that Affidavit as to why ACL's application should be refused and add the further
reasons referred to below for such refusal.
(3) As a preface, I have no idea whether the clients of Hamilton Ross have or have not paid Irish
tax on their funds in the hands of Hamilton Ross nor do I know whether they are required to
do so, but I am advised that it is against the public policy of the Cayman Islands to assist a
6 5
P. 14/15
MfiR-26-01' MOM 04:58 PM
» wide-ranging information gathering exercise which is aimed at enforcing the revenue laws
of another country and the more so when the person seeking the permission to make the
disclosure is motivated in so doing by threats or by fear of reprisals. It is on those bases that
Hamilton Ross makes this further, objection to this application by ACL.
(4) ACL admits in paragraph 2.6 of the Affidavit of John Bryan Bothwell dated 1 s t February,
2001 filed in this Cause ("the Bothwell Affidavit") that the creditors) on whose behalf the
Inspectors were to conduct the examination of the affairs of ACL to determine whether ACL
had attempted to defraud any creditors either of itself or any other person, were none other
than the Irish Revenue.
(5) Since it is clear that the disclosure of the confidential information can only be used for the
purpose of assisting a foreign country to enforce its revenue laws and the enforcement itself
has for many years, I am advised, been held to be against public policy, it follows that
assisting in the disclosure, when those affected or who might be affected object, must
equally be against Cayman Islands public policy even if the person in possession of the
information were prepared voluntarily to give it up. .
(6) In this case, ACL has admitted that it is prepared "voluntarily" to give up the information to
the Inspectors purely as an appeasement measure in the hope that other pressures on ACL
will be relieved. Indeed, in paragraph 4.2 of the Bothwell Affidavit it is stated that "It has
been suggested by the Inspectors that the Irish High Court could, at least in theory, act upon
their report by making a winding up order in respect of ACL of its own. motion." This can
only reasonably be regarded in the context of the circumstances set out in the Bothwell
Affidavit, as a not too subtle threat with the clear objective of bringing pressure to bear on
ACL to give up the information or seek permission to do so. It surely must also be against
Cayman Islands public policy to render assistance in those circumstances.
I am further advised that the pressure brought to bear on ACL as outlined above also
constitutes a breach by the Inspectors of Section 5(1 )(b) of the Law for which criminal
sanctions can be imposed.
P. 15/15
1 HON 04:58 PM
<S) For the further reasons appearing in this Affidavit, 1 respectfully request this Honourable
Court to deny ACL's application. No declaration under Section 3(2)(b)(v) nor any direction
under Section 4 of the Law should be made or given.
i
THIS AFFIDAVIT is filed by Myers & Alberga, whose address for service is One Regis Place,
90 Fort Street, P.O. Box 472, George Town, Grand Cayman B.W.I., attorneys-at-law for
Hamilton Ross Co. Limited.
Appendix XVI (b)
George Town, Grand Cayman
WHEREAS the Scheduled Property has been transferred to the Original Trustee to the intent that
the Original Trustee must hold it on the trusts declared in this Declaration of Trust.
»
NOW THIS DEED WITNESSES as follows:-
1. In this Declaration of Tmst, unless inconsistent with the context or subject matter or
circumstances:
(1) "The Beneficiaries" means the persons specified in the First Schedule as amended
from time to time in accordance with clause 2 and "Beneficiary" must be
construed accordingly;
(2) "The Original Trustee" means JOHN ANDREW FURZE of Ansbacher House,
""George Town, Grand Cayman, British West Indies.
(3) "The Perpetuity Date" means the day on which the shortest of the following
periods expires:-
(a) The period ending on the hundredth anniversary of the date of this Trust;
or
(b) The period of twenty (20) years from the death of the last survivor qf all
descendants male and female of King George Sixth of England living on
the date of this Trust; or
(c) The period ending on such date as the Trustee appoints by deed.
(4) "Property" means assets of every description wherever situate and includes real
personal intangible, movable or immovable property of every description and
wherever situate and include investments, policies, cash and choses in action.
(6) "The Scheduled Property" means the property set out in the Second Schedule;
(7) "This Tmst" means the trust declared by this Deed which will be known as the
POINC1ANA Trust;
(b) Any further or additional Property which any person donates to or vests or
causes to be vested in the Trustee to be held on the trusts and with and
subject to the powers and provisions of this Trust, and
(c) The Property for the time being and from time to time representing the
Scheduled Property and the further or additional Property (if any) referred
to in sub-paragraph (b), and all accumulations of income and capital from
time to time;
(9) "The Trustee" means the Original Trustee or any other trustee of this Trust for the
time being and from time to time;
(10) Words of one gender include any oilier gender and singular words include the
plural and vice versa.
(1) The Trustee DECLARES that it holds and will manage the Trust Fund on the
trusts and with and subject to the powers and provisions set out in this Deed. All
land must be held on trust for sale with power to postpone sale.
(2) The Trustee may at any time during the existence of this Trust accept any
additional Property which any person donates to the Trust Fund either personally
or by will.
(3) The Trustee may at any time by deed amend the First Schedule so as to add any
person or class of persons whatever now in existence or born before the
Perpetuity Date as a Reneficiary, and that person or class of persons will for all
purposes become a Beneficiary as of the date of the deed, or such later date as
the deed specifies.
(4) The Trustee may likewise at any time by deed amend the First Schedule so as to
exclude any person or class of persons from being a Beneficiary as of the date of
the deed, or from such oilier date subsequent to the date of the deed as is
specified in it, but without prejudice to the Truslec's power to name that person
or class of persons to be a Reneficiary at a future dale.
(1) The Trustee must hold all of the capital and income of the Trust Fund in trust for
all or such one or more exclusively of the others or other of the Beneficiaries at
such age or time or respective ages or times if more than one in such shares and
with such trusts for their respective benefit and such provisions for their
respective advancement, maintenance and education at the Trustee's discretion 'as
the Trustee by any deed revocable or irrevocable executed before the Perpetuity
Date appoints.
(3) The Trustee for the time being may make or revoke any revocable appointment
notwithstanding that the person who makes the appointment and revokes the
appointment may not be the same person.
(1) In default of and subjcct to any appointment made under clause 3, the Trustee
may until the Perpetuity Date pay or apply the whole or such part as the Trustee
thinks fit of the income of the Trust Fund as it arises to or for the maintenance,
education, advancement or benefit of all or any one or more of the Beneficiaries
for the time being in existence in such proportions or manner as the Trustee in
its discretion thinks fit.
(2) Subject as set out in subclause (I), the Trustee must until the Perpetuity Date deal
with the income of the Trust Fund or so much of it as is not paid or applied as
set out in clauses 3 and 4(1), by accumulating it as an accretion to the capital of
the Trust Fund.
In default and subject to clauscs 3 and 4, the Trustee must hold all of the capital and
income of the Trust Fund on trust for such of the Bcneficiaries as are in existence
immediately before the Perpetuity Date, if more than one, in such shares as in its
discretion it thinks fit or, if there is no such person, then on trust absolulely for any
charitable institution mentioned in the Third Schedule.
The Trustee may at its discretion at any time pay or apply Ihe whole or any part of the
Trust Fund to or for (he maintenance, education, advancement or benefit of all or any
one or more exclusively of the others or other of Ihe Beneficiaries in such manner as the
Trustee, in its discretion, thinks fit, without being liable to account for the exercise of
that discretion, including purchasing an annuity for any one or more of the Bcneficiaries.
Notwithstanding any of Ihe trusts, powers and provisions in this Deed, the Trustee may
at any time before the Perpetuity Date by deed, revocable or irrevocable, release any
power, right or discretion under this Trust.
>
No benefit devolving 011 any Bcneficiary under this Trust may form or constitute a
portion of any communal or joint estate of that Beneficiary but that benefit will be and
remain Ihe sole, separate and exclusive property of that Beneficiary and, should any
Beneficiary be married and be subject to laws of community property, then any benefit
so devolving will be expressly excluded from the community and, in the case of the
Beneficiary being female, that benefit will also he free from the interference, control or
marital power of any husband of Dial Bcneficiary. In this clause, the word "benefit"
includes Property and Ihe provisions of this clause apply not only to Ihe benefits actually
devolving on any Beneficiary but also to the Property for the time being representing it
and the income of it.
In addition to the powers vested in trustees by Jaw, the Trustee without the consent of
any Beneficiary has and may exercise the following powers: -
(1) To retain any Property belonging to or forming part of Ihe Trust Fund in the
actual state or condition in which the Trustee receives it for so long as the
Trustee thinks proper without being answerable for any loss occasioned by so
retaining it.
(2) To sell or otherwise dispose of all or any Property at any time forming part of
the Trust Fund in such manner by public auction or private contract and for such
price in money or other consideration and on such terms and conditions as the
Trustee thinks proper am! to receive the consideration or price on such terms and
conditions as the Trustee thinks fit and give receipts for it.
(3) To exercise all the voting powers attaching to any shares, stocks, debentures or
other securities or notes at any time forming part of the Trust Fund.
(4) To exchange Property for other Property of a like or different nature and for such
consideration and on such terms and conditions as the Trustee considers
advisable.
(5) To compromise and settle for such consideration and 011 such terms and
conditions as the Trustee considers advisable all matters arising in relation to this
Trust or the Trust Fund and all those compromises and settlements will be
binding on all the Beneficiaries.
(6) To surrender and deliver up any securities or notes or other Property forming part
of Ihe Trust Fund, for such consideration and on such terms and conditions as the
Trustee approves, to any company or corporation reducing its capital and the
Trustee may receive that consideration in (lie form of cash, securities or other
assets as is agreed between the Trustee and that other company or corporation.
(8) To invest or deal with any money forming part of the Trust Fund without regard
to the provisions of any statute regulating trusts in any Property or business
whatever (including hut not limited-lojhc purchase of any freehold or leasehold
<l/<ln».cihtc.prol
land with or without any house or other buildings on it or goods for the beneficial
occupation, use or enjoyment of any Bcneficiary) on such personal credit with or
without security and with or without interest as the Trustee in its discretion thinks
fit, to the intent that the Trustee will have the same full and unrestricted power
of dealing with and investing and varying investments and Property in all respects
as a beneficial owner. <
(10) To pay out of the income or capital of the Trust Fund all the costs of and
incidental to the preparation execution and stamping of this Trust.
»
(II) To determine whether any sums received or disbursed are on account of capital
or income or partly on account of one and partly on account of the other and in
what proportions, and the decisions of the Trustee, whether made in writing or
implied from its acts will he conclusivc and binding on all Bcneficiaries.
(12) To carry oh any trade or business anywhere in the world whether alone or in
partnership whether limited or general.
(13) To lend the whole or any part of the Trust Fund to any Beneficiary or any
company referred to in subclause (20) of this clause or any partnership referred
to in subclause (12) of this clause and to appropriate and apply it or the income
of it in securing (by any means however) any obligation of that Beneficiary,
company, or partnership, or in guaranteeing or becoming surety for him on such
terms as to repayment or otherwise and whether interest free or at interest and
with or without security as the Trustee thinks fit.
(15) To enter into any indemnity in favour of any former trustee or other person in
respect of any contingent or prospective liability (including any tax, duty or other
fiscal imposition) in respect of the Trust Fund or the income of it or otherwise
in connection with this Trust and to apply the whole or any part of the Trust Fund
or the income of it by way of mortgage, pledge or otherwise however as security
for that indemnity.
(16) (a) To employ and pay for such professional or other assistance as the Trustee
thinks necessary in the discharge of its duties, including but not limited to
lawyers, accountants, agents, advisers, managers and employees of any
kind.
trvil/&-<Hdni.ci1iie pre*
4
a s
1
, (b) To act on the opinion or advice of or information obtained from any
••''v financial adviser, lawyer, valuer, surveyor, broker, auctioneer, accountant
or other expert or professional person, but so that the Trustee will not be
responsible for any loss, depreciation or damage occasioned by acting or
not acting in accordance with that opinion, advice, or information.
i
(17) To determine all questions and matters of doubt which may arise t'h the course of
the management, administration, realisation, liquidation, partition or winding up
of the Trust Fund.
t
(18) To erect buildings on and make improvements to any Property forming part of
Ihe Trust Fund and also to conduct farming operations on and lease all or any
part of that Property.
(19) To institute and defend legal proceedings and to proceed to ihe final end and
determination of them or compromise them as the Trustee considers advisable.
(20) To incorporate or acquire the shares of any company in any place in the world
at Ihe expense of the Trust Fund with limited or unlimited liability for the purpose
of, among other things, acquiring or holding the whole or any part of the Trust
F_und; ant I the consideration on the sale of the Trust Fund or any part of it to any
f ••,'":) company incorporated or acquired pursuant lo this subclause may consist wholly
..'"'•*' or partly of fully paid shares or debentures or debenture stock or other securities
or notes of the company and may be credited as fully paid and may be allotted
lo or otherwise vested in the Trustee and will be capital money in the Trustee's
hands.
(21) To exercise or concur in exercising the voting and other rights attaching to any
shares or securities for the time being forming part of the Trust Fund so as to
become a director or other officer or employee of any company or other entity
and to be entitled to vote and to be paid and to retain for the Trustee's use and
benefit reasonable remuneration for those services.
(22) To raise or borrow money on the security of the Trust Fund or any part of it at
any time and pay or apply the money so borrowed or raised in any manner which
money forming part of the capital of the Trust Fund may be paid or applied and
to execute and deliver such security documentation for loans or indebtedness or
other obligations as is required; and to give guarantees and indemnities and by
any means to secure liability under them oil the Trust Fund or any part of it.
(23) To deposit the securities, title deeds and other documents belonging or relating
to this Trust for safe custody with any bank or trust company (including itself).
(24) To hold any part of the Trust Fund in the name of any nominee of the Trustee.
(c) to a parent or some relative or friend for the care and support and
education of that Beneficiary; or
(d) by the Trustee applying those amounts directly for the benefit of that
Beneficiary;
tnul/*-(IMn*.ciblc.prol
and as regards (b) and (c). without having to sec to the application of them and
the receipt of any such person will constitute a full and final release and discharge
of the Trustee.
(26) If any income, probate, estate or other duty, fee or tax becomes payable in the
Cayman Islands or elsewhere in respcct of die Trust Fund or any (tart of it on the
death of any Beneficiary or otherwise, to pay at its discretion (but in the interest
of the Beneficiaries ami the Trust Fund) all or any part of that duty; fee or tax out
of the Trust Fund with or without recourse against any Beneficiary or to refuse
to pay it or any par^ of it unless indemnified, and to determine the time and
manner of the payment (if any).
(27) Generally in relation to the Trust Fund to perforin all acts of alienation,
hypothecation and other acts of ownership to the same extent and with the same
effect as the Trustee might have done if it had been the bcneficial owner and the
Trustee's decision and action, whether actually made or taken in writing or
implied from the
—Notwithstanding any of the trusts, powers and provisions in this Deed, the Trustee may
at any time before the Perpetuity Dale at its discretion by any irrevocable deed, appoint
that the whole or any part of the Trust Fund must subsequently be held on the trusts and
with and subject to the powers and provisions of any other trust (including this present
provision) not infringing the rule against perpetuities applicable to this Trust and
approved by Ihc Trustee and in favour or for the benefit of all or any one or more
exclusively of the other or others of the Beneficiarics. If it makes any such appointment,
the Trustee may transfer to the trustee of that other trust the Properly comprised in the
appointment and then the trusts declared in this Deed concerning that Property will end
and that Properly will for all purposes be subject to the trusts powers and provisions in
that other trust and be subject to and governed by the proper law of that other trust
whether or not that proper law is the proper law of this Trust.
Notwithstanding any of the trusts, powers and provisions in this Deed, the Trustee may
at any lime before the Perpetuity Dale by any irrevocable deed relire as Trusiee and with
Ihe Protector's written approval appoint a new trustee outside the Cayman Islands as
Trustee of this Trust On that appointment being made, the Trustee must immediately hold
the Trust Fund on trust for the new trustee and must transfer it to the new trusiee as soon
as possible. Subsequently, the rights of all persons and Ihe construction and effect of
every provision of this Trust will be subject to the exclusive jurisdiction of and be
construed only according lo the law of the country of residence or incorporation of the
new trustee which will become the forum for the administration of this Trust unless any
law, including any rule against perpetuities under that.law, would be infringed by the
provisions of this Deed, in which event, although Ihc forum for Ihe administration of this
Trust will liavc changed Ihe laws of the Cayman Islands will continue to apply as
provided by clause 22. If the Trustee exercises its power under this clause, clauses 17
and 22 will take effect and be subject to the provisions of this clause AND the new
trustee may by deed make such amendments to this Deed as are necessary to ensure that
it is effective and legal in that new jurisdiction.
The Trustee must keep accurate accounis of its trusteeship and may have them audited
annually at Ihe Trust's expense as the Trustee determines, by an accountant or firm of
accountants which the Trustee selects.
The customary expenses in connection with Ihc administration of this Trust including the
Trustee's remuneration and chargcs and of the investment of any part of the Trust Fund
and the collection of income and other sums derivable from it must be charged in the
first instance against the income of the Trust Fund BUT if that is insufficient then against
capital.
The Trustee may, in its discretion appropriate any part of the Trust Fund in its actual
slale or condition of investment at Ihe time of appropriation in or towards satisfaction of
any interest of any person in the Trust Fund as seems just and reasonable to the Trustee.
(1) Any Trustee being a trust company or corporation is entitled to charge and be
paid out of the Trust Fund remuneration in accordance with its' $cale of fees in
force from lime to lime and may, as may its parent company or any subsidiary
or any company in which its parent company is a shareholder, without accounting
for any resultant profit, act as banker to and accept deposits from and perform
any service for the Trust Fund on the same terms as it would make with any
other customer.
(2) Any Trustee being a lawyer, chartered accountant or other person engaged in any
profession or business will be entitled to charge and be paid all usual professional
and other charges for business transacted, time spent and acts done by him or any
partner of his in connection with this Trust, including acts which a Trustee not
being in any profession or business could have done personally.
(3) Any Trustee may on behalf of this Tmst contract or deal with any personfirm or
body corporate with whom it is interested in any way whatever, directly or
indirectly, without the Trustee or that person, firm or body corporate having to
account for any resulting profit.
The Trustee need not give bond or security for the administration of the Tmst Fund or
for the discharge of its duties arising under this Trust.
(1). If there is a Protector, the power of appointing a new trustee of this Trust will be
vested in the Protector, but if there is no Protector, or failing an appointment by
the Protector within fourteen days of a written request from the Trustee to do so,
that power will be vested in the Trustee or the personal representatives or the
liquidator of the last surviving Trustee, and that power will extend to the
'appointment of a new trustee in Ihe place of any Trustee resigning its trusteeship
and also to the appointment of additional trustees up to any number subject to
such limit (if any) as is imposed by law.
(2) Any Trustee may at any time resign the'trusteeship on giving not less than
fourteen (14) days' notice addressed to the other trustees (if any) or, if there are
no other trustees, if a new trustee is appointed in the place of the retiring Trustee,
and the notice of resignation will be taken to operate so as to vest all of the
Property forming the Trust Fund in the continuing Trustee or the new trustee (as
Ihe case may be).
(3) The office of a Trustee will ipso Jnclo end if that trustee, being an individual, is
found lo be a lunatic or .of unsound mind or if he becomes subject to any
bankruptcy laws or, if that Trustee, being a company, enters into liquidation
whether compulsory or voluntary (not being merely a voluntary liquidation for the
purposes of amalgamation or reconstruction).
(4) Notices of all changes in the trusteeship must be endorsed on or attached to this
Deed signed by the surviving or continuing Trustee, if any, and every notice will
be sufficient evidence to any person having dealings with this Trust as to the facts
to which it relates, and all notices of changes in the office of Protector must be
dealt with and will with the necessary changes be evidenced in like manner.
(5) Any person dealing with this Trust may rely on a copy of this Deed and of the
notices endorsed on it or attached to it, certified by the Trustee or the Trustee's
lawyer before a Notary Public, to the same extent as it might rely on the original.
(6) Unless there are fewer than three trustees of this Trust, the Trustee may act by
majority vote.
(1) Every discretion or power conferred on tlie Protector by this Deed will be an
absolute and uncontrolled discretion or power, and every discretion or power
conferred on Ihe Trusiee by this Deed or by law will, unless otherwise expressly
stated to be subject lo Ihe consent or control of Ihc Prolcctor, be an absolute and
uncontrolled discretion or power, and no Trusiee will he held liable for any loss
or damage accruing as a result of Ihc Trustee's concurring or refusing or, failing
lo concur in an exercise of any discretion or power and, during any period that
there is no Prolcclor, every discretion or power of Ihe Trusiee will be an absolute
and uncontrolled discretion or power.
(2) No Trustee (notwithstanding tfiat it is a professional trustee) will be liable for any
error of judgment or mistake of law or other mistake or for anything EXCEPT
the wilful misconduct or wilful breach of trust by that Trustee and except as set
out in this sub-clause each Trustee and Ihe directors, officers and employees of
any coqiorale trustee will have no liability whatever for and must be indemnified
by Ihc Trust Fund against any claims, losses, death duties, taxes and impositions
arising in connection with the Trust Fund or any part of it.
(1) The Trustee may at any time on such terms as it thinks fit, whether for a fixed
period of time or subject to a fixed period of notice or otherwise, and either in
jelation lo the whole of the Trust Fund or to any part of it as may for the time
being be invested in any particular country or group of countries, act as
investment adviser or investment or portfolio manager or employ any person,
firm, or company (including without prejudice lo Ihe generality of the provisions
of Ibis sub-clause any company being Ihe parent company or a'subsidiary
company of Ihe Trustee or any company under common control with or otherwise
associated with the Trustee or any company in which Ihe Trustee is in any way
interested) as an investment adviser or investment or portfolio manager.
(2) The Trustee may give an investment or portfolio manager power to operate a
discretionary account. The Trustee may employ an investment or portfolio
manager on terms that it may sell investments lo and purchase investments from
the Trust Fund, pool trust funds with those of itself and other customers, and
aggregate the Trust Fund's transactions with those of itself and other customers
so as lo average the cost of sales and purchases over a period.
(3) The Trusiee may pay an investment adviser or investment or portfolio manager
such fees, commission or other remuneration and such compensation for expenses
as the Trustee in its discretion thinks fit, and the investment adviser or investment
or portfolio manager will lie entitled to retain for its own use and benefit any
commissions or share of commissions customarily or by usage payable to it in
relation lo any dealing or transaction with or concerning the Trust Fund or any
part of it; AND if Ihe Trustee or any parent, subsidiary or associated or other
company mentioned in this clause acts as investment adviser or investment or
portfolio manager, it is entitled to remuneration and commission and generally to
act in accordance with its published terms and conditions in force from lime to
time for acting in that capacity.
(4) No Trustee will incur any liability or be in any way responsible for any loss
which may be incurred as a result of negligence of Ihe investment adviser or
portfolio manager or anything done or not done as a result of any dealings of or
advice or recommendations given or purporting lo have been given by an
investment adviser or investment or portfolio manager (whether in writing or by
.cablegram or orally or by telephone or otherwise) or for any omission lo take any
action in the absence or through nonreceipt of that advice or those
recommendations from Ihe investment adviser or investment or portfolio manager
and so that, in particular but. without prejudice lo Ihe generality of Ihe provisions
of this sub-clause, no Trustee will be liable for any failure to diversify the
investment of the Trust Fund or any part of il.
The Trustee need not interfere with or lake any active part in Ihe management or conduct
of the business of any company wherever resident or incorporated in which Ihe Trust is
.cibtc.prot 8
interested although holding the whole or a majority of the shares carrying the control of
the company, and so long as the Trustee has not notice of any act of dishonesty or
misappropriation of money on the part of the directors or employees having the
management of the company the Tmstee may leave the conduct of its business (including
the payment or non-payment of dividends) wholly to those directors or employees; and
no Beneficiary under this Trust will be entitled to require the distribution of any dividend
' hy any company wherever incorporated or resident in which the Trust may be interested
orrequirethe Tmstee to exercise any powers he may have compelling any such
distribution.
Every Trustee or Protector who is a befdy corporate may exercise or concur in exercising
any discretion or power conferred on it by a resolution of that body corporate or by a
resolution of its board of directors or governing body or may delegate therightand
power to exercise or concur in exercising any such discretion or power to any one or
more of its directors, officers or employees.
This Trust is established under the laws of the Cayman Islands and, if and so long as the
powers in clause 11 have not been exercised, therightsof all parties and the construction
and effect of every provision of this Trust is governed by and construed only according
to the laws of the Cayman Islands, which is the forum for the administration of this Trust.
(1) The Protector will automatically cease to be the Protector, if being an individual,
he or she dies or is found to be a lunatic or of unsound mind or becomes subject to
any bankruptcy laws, or if that Protector, being a company, enters into liquidation
whether compulsory or voluntary (not being merely a voluntary liquidation for the
purposes of amalgamation or reconstruction) or in either case if that Protector
makes a valid appointment under sub-clause (2), or resigns.
(2) The Protector may be deed and, if an individual, may also by will irrevocably
appoint any other person to be Protector of this Trust in his place. On the Trustee
being given written notice of the appointment and on the person appointed
consenting in writing to act, that person will become the Protector, immediately if
appointed by deed, or on the death of the testator if appointed by Will.
FIRST SCHEDULE
1. James Desmond Traynor, of 134, Howth Road, DUBLIN 3, Ireland and his wife
Dofeen Traynor;
2. Any child or grandchild of the said James Desmond Traynor and Dofeen Traynor.
SECOND SCHEDULE
The total issued equity and loan capital of the following companies incorporated under
the laws of the Cayman Islands, British West Indies:-
POINCIANA FUND LIMITED
HAMILTON ROSS CO. LIMITED
WORLDWIDE MANAGEMENT & CONSULTANCY SERVICES LIMITED
DUMAS'HOLDINGS LIMITED
lUffifiSaiEDIZLH
Witness
"'^iirtjf
Dear Tony,
Please be advised that Poinciana Trust has no current interest in Hamilton Ross Co. Limited or
Dumas Holdings. Any previous holdings in the companies were disposed of by, John A. Furze MBE,
my predecessor as Trustee. The Assets of the Trust remain substantially as stated in the information
provided you in February 2001.
The decision as to legal action in respect of Poinciana Fund was taken solely on the advice of our
Cayman Islands solicitor. Trust funds were used to cover legal expenses. Neither you nor any
member of your family were, or need be, consulted as to the conduct of the affairs of the trust or in
respect of any legal action.
Hamilton Ross Co. Ltd. was a party to legal action undertaken by a separate firm of attorneys. No
funds of Poinciana Trust were utilized in the action.
Yours faithfully,
Barry B. Benjamin
Appendix XVI (d)
We certify that the foilowiu* Resolution of the Board of Directors of Hamilton Boss Co. Limited
19 9 2 an<1
was passed at a meeting of ihe Board held o n i s t h Septenfaer <My
"Resolved that Irish Intercontinental Bank Limited be and is hcrebj jcquested to open » n d / o j
continue one or more account(s) in the name of the Company and that the said Bank be and is
licicby authorised to h o n o u r all cheques, bills of exchange, promissory notes and other
negotiable instruments expressed to be drawn, signed, accepted or made on behalf of the
Company and to act on any instructions relating to the account(s), affairs or transaction* nf the
Company notwithstanding that such action may cause such a c c o u n t s ) to b« overdrawn or any
overdraft thereon to be increased (but without prejudice to the i iglit of the said Bank to refuse to
allow nny overdraft or increase of overd raft) provided they are signed on behalf of the company
by any one director or authorised agent
and that (lie C o m p a n y do borrow from the said Bank on such term.* and subject to such
conditions as may be agreed with the said Bank from lima to time and thai the said Bank be
turnitheri with a copy of the memorandum and A nicies of Association of the Company and
with ihe full names anrl the specimen signatures of the Directors, Secretary and other Ofllc«r» of
/ the Company and that they be from time to time informed In writing, signed by at least one
Director and the Secretary of the Company, of any change that may take place in them and that
this Resolution be communicated to the said Bank and remain in force until notice in writing to
the contrary, signed by at least one Director and the Secretary of the Company, be given to the
said Bank."
Director Dirdstor/Sccrctaiy
Dear Ronan,
Could you please arrange to lodge the enclosed cheque for
Stg.£5,066.94 to credit of Hamilton Ross Account No.02/0-1354/81
Yours sincerely, / /
/
L JUL^cx^
ANSBACHER LIMITED
JDT/AJW
*V063
Please reply to: P.O. Box 887, Grand Cayman. Cayman Islands. British Wes: Indies
42 Fitzwilliam Square. Telephone: (809) 949-8655 Teiex: CP 4305
Dublin 2. Facsimile (809) 949-7946 (809) 949-f26~
Tel: 765144/763065
Fax: 612035 >
dM '
' Dear Ronan,
Could you please arrange to let me have for collection an Irish
Pounds cheque for IRE220.00 payable to Kentford Securities
Limited and debit the Sterling cost to Hamilton Ross Account
No.02/01354/81.
Yours sincerely,
Dear Ronan,
Could you please arrange to have the enclosed cheque for
Stg.£12,000.00 lodged to credit of Hamilton Ross Account
No.02/01 354/81 .
HHCHZ-
Please reply to: P.O. Box 887, Grand Cayman, Cayman Islands, British West Indies
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2. Facsimile (809) 949-7946 (809) 949-5267
Tel: 765144/763065 /
Fax: 612035
Dear Ronan,
We are expecting in either tomorrow or Wednesday a sum of
just in excess of Stg.£1 million. When it arrives would you
immediately transfer to Hamilton Ross Co. Limited Call Deposit
Account No.02/01354/81.
Yours sincerely,
JDT/AJW
Dear Ronan,
Could you please arrange to lodge the -enclosed draft for
Stg.£12,000.00 to Hamilton Ross Account No.02/01354/81.
Yours sincerely,
/AJW
H-t+QIS
Appendix XVI (g)
Please reply to: P.O. Box 887, Grand Cayman. Cayman Islands. British West Indies
42 Fitzwilliam Square,
DUBLIN 2. Telephone: (809) 949-8655 Telex: CP 4305
Tel: 676 5144 Facsimile: (809) 949-7946, (809) 949-5->67
Fax: 676 5013 <
t i'i
t.
Dear Daire,
Please arrange to let us have for collection an Irish Pounds cheque for the Irish Pounds
equivalent of Stg.£6,907.85 payable to CASH and debit the Sterling cost to Hamilton
Ross Account No. 02/013 54/81.
Yours sincerely,
9 A,
DPC/AJW
Please reply to: p.o. Box 887, Grand Cayman. Cayman Islands. British West Indies
42 Fitzwilliam Square, _
Dublin 2. Telephone: (809) 949-8655 Telex: CP 4305
Tel: 676 5144 Facsimile: (809) 949-7946. (809) 949-5">67
Fax: 676 5013 ,
Dear Daire,
Could you please arrange to let us have for collection a U.S. Dollar draft for
US$8,000.00 payable to INVESTMENTS LTD. and debit the Sterling cost
to Hamilton Ross Account No.02/01354/81.
Yours sincerely,
A-J
For HAMILTON ROSS CO. LIMITED.
DPC/AJW
A/
4>
U1* op)
Please reply to: P.O. Box 887, Grand Cayman. Cayman Islands. Briush West Indies
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2.
Tel: 676 5144 Facsimile: (809) 949-7946. (809) 949-5267
Fax: 676 5013
<
1.
Dear Daire,
Midland Bank
P.O. Box 648
Poultry and Princess Street
London EC2P 2BX
Yours sincerely.
DPC/AJW
rl
Pleasereplyto: P.O. Box 887. Grand Cayman. Cayman Islands. Briush West Indies
42 Fitzwiliiam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2.
Tel: 676 5144 Facsimile: (809) 949-7946. (809) 949-5267
Fax 676 5013
Dear Daire,
Could you please arrange to let us have for collection an Irish Pounds cheque for
rR£13,265.00 payable to BANK OF IRELAND and debit the Sterling cost to
Hamilton Ross Account No. 02/013 54/81.
Yours sincerely,
L ^SUU-c
/AJW
t)
jy
Please reply to: P.O. Box 887, Grand Cayman. Cayman Islands. British West Indies
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2.
Tel: 676 5144 Facsimile: (809) 949-7946. (809) 949-5267
Fax: 676 5013
Dear Daire,
Could you please arrange to let us have for collection an Irish Pounds cheque for
JR£4,000.00 payable to BANK OF IRELAND and debit the Sterling cost to Hamilton
Ross Account No. 02/013 54/81.
Yours sincerely,
DPC/AJW
l+t oo
Appendix XVI (h)
Please reply to: P.O. Box 887. Grand Cayman. Cayman Islands. British West Indies
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2. Facsimile: (§09) 949-7946. (809) 949-5267
Tel: 765144/763065
Fax:612035
Dear Ronan,
Could you please arrange to lodge the enclosed cheque for
Stg.£21.00 to credit of Hamilton Ross Account No.02/01 354/81 .
Yours sincerely,
JDT/AJW
Appendix XVI (i)
Please reply to: P.O. Box 887. Grand Cayman. Cayman Islands. British West Indies
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2.
Facsimile: ($09) 949-7946. (809) 949-5267
Tel: 765144/763065 /
Fax: 612035
Dear Ronan,
Could you please arrange to let me have for collection an
Irish Pounds cheque for IR£20,000 payable to B.E.L.
Secretarial Services and debit the cost to Hamilton Ross
Account No.02/01 354/81 .
Yours sincerely,
P.O. Box 887, Grand Cayman. Cayman Islands. British West Indies
Please reply to:
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2. Facsimile: (809) 949-7946. (809) 949-5267
Tel: 765144/763065
Fax: 612035
18th February, 1993.
Ronan Redmond, Esq.,
Corporate Services,
Irish Intercontinental Bank Limited,
91 Merrion Square,
DUBLIN 2.
Dear Ronan,
Could you please arrange to let me have for collection an Irish
Pounds cheque for IRE50.00 payable to Kentford Securities Limited
and debit the Sterling cost to Hamilton Ross Account No.02/01 354/81 .
Yours sincerely,
JDT/AJW
P
Please reply to- '°' B ° X 887
'Grand Ca
y m a n - Cay™*11 Islands. British West Indies
42 Fitzwilliam Square, Telephone: (809) 949-8655 Telex: CP 4305
Dublin 2. Facsimile: (809) 949-7946. (809) 949-5267
Tel: 765144/763065
Fax: 612035
Dear Ronan,
Could you please arrange to let me have for collection an Irish
Pounds cheque for IR£10,000.00 payable to Bank of Ireland and
debit the Sterling cost to Hamilton Ross Account No.02/01354/81.
Yours sincerely,
IrOJUL^l
J D T / A J H
hSCli.
Appendix XVI (j)
CENTRAL BRINK BANC C6ANNAIS
OF IRELAND NA H €IR€ANN
PO Box No 559 Telephone 353-1-434 4000 / 671 6666
Dame St. Dublin 2 Telex 31041. Fax 353-1-671 6561
11 April 2002
Dear Inspectors
I refer to your letter of 5 April 2002 addressed to the Governor. I confirm that
Hamilton Ross Company Limited never applied to the Central Bank for or never
held a licence to carry out banking business in this State.
Yours sincerely
i\
Significant Dates in the Period of Exchange Controls
Exchange Control Acts 1954 (and four-yearly renewal Acts). The Act itself
was veiy restrictive, prohibiting virtually any transaction outside the State
t
"except" with the permission of the Minister (for Finance). The "Scheduled
Territories were defined in Part I, paragraph 3 of the Act as:
1965
The Exchange Control Acts provided for delegation by the Minister of his
powers under the Act. On May 3rd, responsibility for administration of most
aspects of the controls was transferred to the Central Bank.
1972
The sterling area (introduced in the U.K. under the Emergency Powers Act of
1939) was effectively dismantled. The 'Scheduled Territories, were reduced
to the State, Northern Ireland, Great Britain, Channel Islands and the Isle of
Man. All other countries, including the Cayman Islands were classified as the
'Overseas Sterling Area* and became subject to Exchange Controls.
1978
Central Bank Notice issued to Authorised Dealers, Approved Agents,
Authorised Travel Agents, Post Office, Building Societies, Registrars and
other interested persons that on 18th December the Minister for^Finance made
regulations under the Exchange Control Acts, 1954 to 1978, thaf'redefmed the
scheduled territories to the State only.
1979
Central Bank Notice issued to Authorised Dealers, Approved Agents,
Authorised Travel Agents, Post Offices, Building Societies, Registrars and
other interested persons of changes to the regulations. On 22 January the
Central Bank confirmed the practical effects of earlier Notice of 18 December
1978.
1987 to 1992
The Minister for Finance issued a Press Release in November 1987 of the
phased relaxation of the controls. The Central Bank began the phased
relaxation of Exchange Controls until the legislation expired on 31 December
1992. The last restriction to be removed was the operation by Irish residents
of foreign currency or Irish pound accounts abroad.
ANNEX 10
Exchange Control Acts 1954 (and four-yearly renewal Acts). The Act itself is very
restrictive, prohibiting virtually any transaction outside the State "except" with the
permission of the Minister (for Finance).
1965
The Exchange Control Acts provide for delegation by the Minister of his powers
under the Act. On May 3rd, responsibility for most aspects were transferred to the
Central Bank.
1972
The sterling area (introduced in the U.K. under the Emergency Powers Act of 1939)
was effectively dismantled. The 'Scheduled Territories' reduced to Channel Islands,
the Isle of Man, the Republic of Ireland and Gibraltar. All other countries, including
the Cayman Islands were classified as the 'Overseas Sterling Area' and subject to
Exchange Controls.
1978
Notice to Authorised Dealers, Approved Agents, Authorised Travel Agents, Post
Office, Building Societies, Registrar and other interested persons that on 18th
December the Minister for Finance made regulations under the Exchange Control
Acts, 1954 to 1978, that redefined the scheduled territories to the State only.
Irish residents holding accounts with banks or otherfinancial institutions in the United
Kingdom required to close such accounts within three months of the date of the
notice. Irish residents holdings of all foreign currency securities (include. U.K.
securities) could be sold only to non-residents. If sold, proceeds had to be reinvested
or offered for sale to an Authorised Dealer within two months.
1979
Notice to Authorised Dealers etc. On 22 January confirming the practical effects of
earlier notice of 18 December 1978.
Press release by Central Bank on 24 October notifying all interested parties that U.K.
authorities had removed all existing Exchange Control restrictions.
1988 to 1992
Central Bank began phased abolition of Exchange Controls which concluded on 31
December 1992. The last restriction to be removed was the operation by Irish
residents of foreign currency or Irish pound accounts abroad.
HTSTORY OF THE SCHEDULED TERRITORIES
ftffZ. J*" 16 23, the "Scheduled Territories" reduced to Channel Islands, Isle of
Man, Gibraltar and Republic of Ireland.
rn5>3 ("Confidential Circular)
Issued by Central Bank to all Authorised Dealers.
Section 9: Foreign Currency Accounts
Irish residents who hold accounts in the currency of countries in the
External Account Area (incl. Cayman Islands) obliged to close all such
accounts and required under Section 3(a) of Ex. Con. Acts, to offer
balances for sale to an Authorised Dealer unless otherwise permitted by
Central Bank.
1954 Exchange Control Act Exchange Control Act Minister for Finance administration via '
- four Year continuation Individual Circular (IC) and Confidential Circular (CC)
1988 Migrating Companies from UK - brass plates EC Directive gives Ireland four years EX 19 - Purchase of Foreign Securities
companies used for tax purposes Individual Private Investors Allowance -1988
31-12-92 Act expires. Financial Transfers Act introduced Exchange Controls abolished
for emergency powers