Friday, 18 May 2012

McCracken's V's Phoenix, And the Winner is?

Hi there guys its Bazel here
The ambition for this blog, when it first began, was that it should be the starting point for discussion about the truth- the fundamental truth – which people have the right to know.
Truth can be a funny thing though…
Some people that manipulate a position of trust surround themselves with profiteers who have an inordinate amount of power over the press and legal systems….
That famous quote which states  “It is error alone that needs their support. Truth can stand by itself” doesn’t resonate as much as it should
Nothing illustrates the resilience and resourcefulness of the truth than of the story of Phoenix Constructions and the McCracken family where a blatant injustice has been made.
The McCracken's would like to set the record straight and put down in print the basic run down on what has been a very long and expensive court case that has had huge local, national and international publicity that has caused the McCracken's great pain, through misconceptions, innuendo, countless rumours and at times has also involved slander and underhanded tactics being utilised within their local home town. (It's now their turn to speak up)
(After speaking with Jarrod and Michelle and the improper circumstances that surrounded them, it makes me wonder why they still chose to call Townsville home.)
We turn the clock back to August 2004 and there had been an idea from the McCracken's in what they had envisioned was to revolutionise Townsville's famous Strand with a change to the entertainment options that were currently on offer. This was to be in the form of the now “Iconic" Watermark development.
It all started in 04 when they entered into a legal contract with Phoenix Constructions to undertake the construction of a building project. Phoenix had just completed a fairly major development similar to what was being proposed and were well placed to deal direct with the programming and logistics of the project. Through Phoenix's due diligence they had come up with a completion date for construction, with ample mechanisms in place to extend that time frame if need be.
Taking this into consideration the McCracken's gave Phoenix another two months in the contract to complete the project this gave enough float for unforeseen issues that may occur.
During the construction period it was officially documented that Phoenix had only ever asked for four days extension of time and unfortunately through their own mismanagement they were 10 months over the date for completion with no explanation given.

When you are a small development company relying on a builder to comply with an agreement and complete a project, when it goes some 10 months over and you are left carrying borrowings from a bank for tens of millions of dollars, there has to be accountability if obligations haven't been met. 'All the agreed payments' to complete the construction had been honoured by Jarrod to Phoenix for all the sub-contractors work with none of them being out of pocket.
It has to be pointed out that Phoenix received a very large builder’s fee which represented a percentage of the overall building costs, along with the preliminary costs that were in the millions of dollars that were also paid to their company.
These were amounts that were accepted by both parties not negotiated when entering into the building contract.
So in a nut shell or summary, layman's terms Phoenix got paid substantial amounts of money to complete a job within a specific time period, this did not occur and there was substantial monies lost by the McCracken’s as a consequence of their delay.

Watermark construction

Even though Phoenix were paid in upwards of 5 million dollars, they felt that the McCracken’s who had taken all the risk in the purchase and development of the property should pay their costs in the over run of the construction. Which they say was in the order of 1.4 million dollars.
A stale mate ensued and off to the courts they went with barristers at the ready. Phoenix saught  the advice of Greg Humphries of Connelly Suthers, who the McCracken’s believe took advantage of a situation to benefit themselves, when Phoenix did not have a case in the first place.
Mediation was ordered by the court , before the matter progressed to far into the legal process and the only offer that was presented was from Mr McCracken who was prepared to settle the matter and meet half way, 600k was to be paid to Mr McCracken, which was less than half what was calculated as being there real loss.
After speaking with our legal advisers, opinions were that we had extremely strong prospects in winning the case. Mr McCracken had read and understood every aspect of the documentation and was confident of his chances.

Phoenix's legal representatives as pointed out, were Connelly Suther's and their solicitor was Greg Humphries’s one of the senior partners of the firm, the McCracken's believe phoenix legal teams tactics were simple......and this is how their legal team played it....." we don't have a case and you, being Phoenix are up for huge liquidated damages within the contract so you might as well throw as much money as possible at the case to drag it out, delay it and have the McCracken's run up substantial legal bills in the meantime and put as much pressure on them even involving the media, hoping it would get to a stage that we would have had enough of the legal fight and either try to negotiate a settlement or walk away."
The media had obviously made up their minds who they thought they wanted to back well before the case even looked like getting to trial.  A mantality echoed from his younger football days where he was labelled 'Bad Boy Jarrod".
Someone had forgotten to tell them that the McCracken’s don't give up that easily in a fight and believe," Tough times don't last Tough people do."
So Phoenix's legal team took to the case, changing their plea 9 times before it could get to trial. They would also put on application after application many many times trying to slow down the process or simply trying to create agitation within the proceedings, this from our side had no effect and was treated as just another stalling tactic. (During this time frame, on the Phoenix side, there were countless circumstances that were undeniably underhanded and in very bad taste to try and discourage the McCracken’s to give up.) The McCracken’s say what went on was truly unbelievable and totally unjust.


They finally get to trial after some 5 years and were to be heard under Justice Cullinane in the Supreme Court of Townsville, you would think that after this time period this is going to be a monumental case, consisting of numerous witnesses, expert reports etc etc. Well the morning of the trial their Barrister conveys to the McCracken's that Judge Cullinane has to disclose to us that he is a very personal friend of Mr Humphries and that Humphries’s and his personal assistant are to be married and that his Honour was to be an invited guest to their special day.
The McCracken’s response was, "this is surely a very big conflict of interest" and that the trial shouldn't go ahead and should be set aside to be heard in Brisbane or by another Supreme Court judge. Cullinane dismissed our concerns and insisted he hear the matter.
After so many years of build up the trial was such an anticlimax with the whole trial lasting all of about three hours? Jarrod, who you would think woud be an integral part of the whole process took the stand for about three questions, with no other McCracken representative to take the stand to give evidence.  They were all dismissed and the trial was over. Was this going to be a total injustice?
The McCracken’s said “We had a very strong feeling that this was going to be a huge stitch up.” The decision was handed down promptly after the trial, Phoenix had won the case. The legal fraternity had stated that, with Culliane’s judgment, if left untested it would have the effect of overturning the last 200 years of corporation’s law within Australia.
Readers should note, that Judge Cullinane retired after the case and anything that Phoenix could do to try and intervene, they tried.
Finally there was no other choice but to get the case out of Townsville and head in the Appeals Court in Brisbane, to see if their reservations were correct.
Jarrod attended the Appeals hearing and was the only non-legal representative there. Pity neither of the Phoenix directors were there to see how poorly their argument was upheld. It was such a dissolute case that there was not one example in the countless cases of law to refer to, to back up Phoenix's legal argument.

The McCracken's legal team made up of David Jackson SC, David Keane JC and Spencer Slasberg from Walsh Halligan Douglas did a fantastic job and made the other side look very substandard.

To this end the McCracken's can now be grateful that the right result has been handed down today the 18th of May and we believe justice eventually prevails.

The McCracken’s are now left to pick up the pieces and hopefully start to gain some normality back in their lives and the freezing orders placed on their companies and assets which have caused enormous grief and hardship, will now be lifted.

The McCrackens finally gained the truth that they were seeking and their case justified in the Court of Law, I'll cheers to that....


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