Investors take property group to court in search of missing millions

The Age

2 days ago

Named the Zenith, it was an immaculate renovation of a historic home in one of Brisbane's best suburbs, Hamilton, and had sold for $10 million – but Lion had not distributed the majority of the money to the investors in that syndicate, the court has heard. Then it acknowledged it had made payments to some, but not all, investors in the project on a 'progressive' basis, it is alleged.
Around this point, panic set in for many of Lion's customers.
From his office on Melbourne's St Kilda Road, forensic accountant and financial planner Michael Landy is leading the charge to find out what happened, after being recruited by the investors involved in the legal case.
Landy's forensic review of Lion's business, tendered as evidence in court in an affidavit from the investors' lawyers, has found a litany of problems.
The lawyer's affidavit alleges that many of the syndicates did not own the development site directly, as investors were allegedly promised, and instead, a Lion entity owned the property. It was also alleged in the affidavit that Lion had taken the money out of most of the syndicates as 'loans' to its businesses without the investors' knowledge and without security.
Worse still, land titles for the properties included as exhibits to the affidavit allegedly showed Lion had taken out millions of dollars of additional mortgages, in some cases up to three, over the development sites. Some of these new undisclosed mortgages allegedly had interest rates of up to 30 per cent a year.
On top of this, Lion had then failed to repay some of the mortgages and the lender had taken possession of the property, it is alleged in the affidavit. Last week, one of those sites in Brighton was sold to new owners. Lion confirmed in response to this masthead's inquiries that another two properties had also been sold as mortgagee in possession.
For some syndicates that meant that not only was the hope of any profit gone, but also there was now no longer a property to develop.
In court in April, counsel for the investors, Justin Graham, KC, described Lion's projects as a Ponzi scheme.
'On examination of the defendant's business model and the materials they've so far denied to show us, the defendant's projects are being operated as a giant Ponzi scheme,' Graham said.
'It is riddled with conflicts, and money and assets are being used hither and thither for wherever it is needed in the group in order to stave off the most pressing creditors.'
Shaun Newberry is also seeking answers about the fate of his wife's investment in one of Lion's syndicates.
'I just want accountability,' he says, adding that he is worried the scheme will go 'belly up' – a live prospect given Lion's own court admission of concerns around its solvency.
Sader and Pesochinsky – both in their mid-40s – might not be big names in the property sector or in the financial planning industry, but the pair have fascinating backgrounds.
Sader is a fan of American 1990s self-help guru Tony Robbins and a graduate of Australian life coach school the Coaching Institute. On his LinkedIn he describes himself as being a human behaviour specialist and certified practitioner of 'Deep State Repatterning' and of 'Neuro Linguistics Programming' – types of self-help psychotherapy to build self-esteem and influence.
Sader brought the skills and drive to enliven a team of sales staff – including a bell he rang in the office for each new investor. Pesochinsky, a more reserved figure, had a long background in property investment and development via Full Circle Financial Services.
Responding to this masthead's inquiries, Lion said it disputed that the investment and ownership structure of specific investments was not properly explained to investors. It also denied investors did not have security over the property.
Instead, it claimed that investors were 'for the most part' purchasing shares in entities that owned the real estate – a claim that allegedly stands in contrast with the investor agreements and land titles included as evidence in the case.
Lion said additional loans it took out for the developments were standard industry practice. 'The fact that external debt would be required to complete construction projects is detailed in feasibility studies that were provided to investors as part of the information memorandum for each project. A funding combination of equity and debt is required in the delivery of almost every property development.'
Asked why Lion's bank accounts, provided to investors as a result of the court action, showed Lion had borrowed the money raised from investors to fund other projects and payments, Lion said: 'While there are inter-company loans, these have been made on commercial terms and in accordance with the processes, structure and procedures that the group adopts to complete projects.'
A spokesman for the Australian Securities and Investments Commission said it was aware a report on the financial position of the Lion group was to be prepared by independent accountants. 'In line with our usual process, ASIC will continue to monitor the situation, and we will assess any new information that comes to our attention on this matter,' the spokesman said.
A source close to the regulator, not permitted to speak on the record, confirmed it had investigated Lion in 2020 and the group agreed to change some of its investor material. ASIC also considered opening a new formal investigation earlier this year, but by that time it decided not to as the Supreme Court matter had begun, the source said.
Meanwhile, investors nervously wait for the outcome of the accountants' report to the court and hope for the completion of its stalled projects.
A Melbourne-based investor, who asked not to be named, says he first invested in the Eminence project in Camberwell in March 2020.
He was told the project of four high-end townhouses would take 18 months to complete and Lion would pay late fees if the project ran over.
More than five years later, he is still waiting for final completion of the project to get any return on his investment. Lion recently promised it would be finished by the end of September.
'I've often visited the project site after some favourable updates, and it was obvious from early on that there were issues,' the investor said.
'My main priority is to see all the investors who invested with Lion retrieve as close to their capital back as possible.'