Cole v Australian Securities and Investments Commission
[2017] QDC 270
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- Cole v Australian Securities and Investments Commission[2017] QDC 270
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Cole v Australian Securities and Investments Commission[2017] QDC 270
Cole v Australian Securities and Investments Commission[2017] QDC 270
DISTRICT COURT OF QUEENSLAND
CITATION: | Cole v Australian Securities and Investments Commission [2017] QDC 270 |
PARTIES: | PETER LIVINGSTON COLE (Appellant) v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (Respondent) |
FILE NO/S: | 1706/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 10 November 2017 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 13 October 2017 |
JUDGE: | Devereaux SC DCJ |
ORDER: CATCHWORDS: |
APPEAL – Justices Act 1886 (Qld) – Appeal against sentence, under s 222 of the Justices Act 1886 (Qld) - Where appellant pleaded guilty in the Magistrates Court to charges under s 530A of the Corporations Act 2001 (Cth) – utility of a table of sentencing decisions of Queensland Magistrates with respect to federal offences – consideration of s 19B of the Crimes Act 1914 (Cth) Corporations Act 2001 (Cth) s 530A Crimes Act 1914 (Cth) s 16A, s 19B, s 20(1)(a) Justices Act 1886 (Qld) s 222 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Warner [2015] FCA 659 DPP v Dalgliesh (a pseudonym) [2017] HCA 41 Guerrero v Dickson [2013] WASC 246 House v The King (1936) 55 CLR 499 Kassem v R [2015] NSWDC 217 Matta v Australian Competition and Consumer Commission (ACCC) [2000] FCA 729 Morton v Robins (1996) 14 ACLR 1197 R v Tran [2007] QCA 221 Whitemore Holdings Ltd (in liquidation) [2004] FCA 806 |
COUNSEL: | Mr A. S. McDougall for the Appellant Mr P. C. O'Connor for the Respondent |
SOLICITORS: | Sciaccia & Associates Lawyers for the Appellant Director of Public Prosecutions (Cth) for the Respondent |
- [1]This appeal is brought under s 222 of the Justices Act 1886 (Qld) against orders made on 11 May 2017 at the Magistrates Court at Brisbane. On that day the appellant pleaded guilty to two counts of breaching s 530A of the Corporations Act 2001 (Cth) by failing to deliver all books required to the liquidator and failing to complete a director’s questionnaire.
- [2]The grounds of appeal are “that the sentence, in all the circumstances, was manifestly excessive” and “in all of the circumstances a conviction should not have been recorded”. The prosecutor tendered a statement, “Facts as alleged”, which I annex to these reasons. The facts are very briefly summarised in the respondent’s written outline as follows:
“The applicant was the director of All Transport Solutions Pty Ltd. A liquidator was appointed to the company on 26 February 2016. The applicant was required to comply with all reasonable requests made by the liquidator, including to provide business records/books.
Despite repeated requests and attempts by the liquidator to obtain certain records and the ‘Director’s and Officer’s Questionnaire’ the applicant failed to comply. The liquidator contacted ASIC in September and they started they pursuing the applicant.
Approximately 12-13 months after the initial requests the applicant provided the Questionnaire to the liquidators. However the requested company books and records remained outstanding until 15 months after the initial request when some of those records were produced.”
- [3]Section 222(2)(c) of the Justices Act provides:
“If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
- [4]As a result, the only relevant ground of appeal is that the sentence imposed by the learned magistrate was excessive. The learned magistrate imposed a fine of $2000 and said “it’s a Commonwealth offence so convictions are automatic”.[1]
- [5]The question on appeal is whether that outcome was excessive. As seems to be customary, the appellant and respondent referred to case law governing the challenge to a discretionary decision, particularly with reference to House v The King (1936) 55 CLR 499. In my view, the proper way to approach an appeal against sentence imposed after a plea of guilty under s 222 of the Justices Act is to appreciate that the first and last question is whether the sentence imposed was excessive. In this case, the appellant refers to certain procedural matters and statements by the learned sentencing magistrate to demonstrate error in the exercise of the sentencing discretion. I will come to those arguments. It might be that the magistrate so erred. But the success of the appeal does not depend on demonstrating that error. On the other hand, failure to demonstrate error is not fatal to the appeal. That is consistent with the time-honoured passage from House v The King which refers, ultimately, to the power of an appellate court to overturn the discretionary decision on the basis that the sentence was manifestly excessive.[2]While obvious error in the exercise of the discretion might help to explain why a sentencing magistrate came to an excessive conclusion, the question remains whether this conclusion was excessive.
- [6]Section 530A of the Corporations Act 2001 (Cth) provides:
“(1) As soon as practicable after… a company resolves that it be wound up, each officer of the company must:
- (a)deliver to the liquidator appointed for the purposes of the winding up, or to the provisional liquidator, as the case may be, all books in the officer’s possession that relate to the company, other than books possession of which the officer is entitled, as against the company and the liquidator or provisional liquidator, to retain; and
…
- (3)An officer of a company that is being wound up must do whatever the liquidator reasonably requires the officer to do to help in the winding up.
…
- (6)A person must not fail to comply with subsection (1)… (3)…”
- [7]The maximum penalty for the offence is 50 penalty units or 1 year imprisonment or both.
- [8]The transcript of proceedings is very short. The appellant’s solicitor appeared and, when the matter was called on, told the learned magistrate that counsel had been briefed, was detained in another place but would be at the court by 9.45am. The learned magistrate said he would proceed with the hearing of the sentence after the Australian Securities and Investments Commission (‘ASIC’) call-over and before he had to deal with a number of traffic matters. The court then adjourned at 9.26am. The court resumed at 9.36am and the case was dealt with although the appellant’s counsel had not arrived yet.
- [9]The charges were read and the appellant pleaded guilty. The prosecutor referred to the statement of facts and added that the appellant had provided the questionnaire on 15 March 2017 and the records required by 8 May 2017. The deficiency of the company was $259,000.[3]The prosecutor told the learned magistrate the appellant was aged 59 years and had no prior ASIC history; that the maximum penalty for the charges was a fine of $9,000, imprisonment for 12 months or both.
- [10]The prosecutor referred the court to a table of comparable decisions. The appellant’s submissions include an attack on the use made of the table.
- [11]The solicitor appearing for the appellant handed up a written outline of submissions prepared by counsel and the reasons of a New South Wales District Court judge in a decision said to be comparable.
- [12]The written outline informed the court that the appellant had been the director of his company since 2009; it was a family-run business employing his wife and daughter. The company operated six trucks and carried scrap metal for a recycling company. The company employed 5 drivers and a secretary. All wages and superannuation were paid to staff to the date of the winding up.
- [13]The outline explained, and the solicitor reiterated before the learned magistrate, that the company’s demise came after a legal dispute in which it claimed to be owed $130,000 by a contractor which led eventually to a shortage of cash flow. The outline then sought to demonstrate a timeline showing a degree of co-operation with the liquidator and an absence of deception by the appellant. There was some trouble locating documents but others were delivered quickly. A USB device containing documents was found to be corrupted but eventually all required documents were delivered.
- [14]The outline referred to the appellant’s personal background and then addressed the comparable cases table and the New South Wales decision in Kassem v R [2015] NSWDC 217 before urging the court to consider disposing of the case by way of s 19B of the Crimes Act 1914 (Cth).
- [15]Counsel attached to the outline 5 character references and a short letter from the appellant’s general practitioner which, while it was largely another character reference, included the assertion that the “onerous and enormous pressures due to being served with” the charges created “unbelievable stress and deep grief” to the appellant and his wife. They had been seeing the doctor on a regular basis for counselling and support.
- [16]The solicitor referred to the doctor’s letter, telling the learned magistrate the appellant had suffered some depression. The solicitor also told the learned magistrate the appellant and his wife refinanced their home to “maximum equity” to pay staff wages and superannuation. The appellant was now working as an employed truck driver. The solicitor emphasised the appellant’s ultimate compliance with the liquidator’s requests and, relying on the decision in Kassem, urged a s 19B outcome.
- [17]The learned magistrate expressed the view that there was “nothing to distinguish this matter from any other run-of-the-mill ASIC prosecution that comes before the court. They’re all basically the same.”[4]His Honour went on, “Give or take a few facts, they’re essentially the same. So why wouldn’t I proceed in the same way as with every other matter? A decision from NSW is really of no relevance.”[5]
- [18]The learned magistrate referred to the table of comparable decisions. When the solicitor persisted with the s 19B submission, his Honour said, “Well, no exceptional circumstances have been demonstrated to go down those lines”.[6]
- [19]When sentencing the appellant, the learned magistrate said he took into account the plea of guilty and all matters in the appellant’s favour, mentioning his depression, but repeating that none of the circumstances was in any way exceptional – “all, in fact, pretty standard” – and there was nothing to enliven the discretion to make an order under s 19B. The fine was, his Honour said, reduced, to take into account the appellant’s actual appearance (his Honour had earlier commented many such cases were dealt with ex parte), the plea of guilty and the mitigating factors.
- [20]Systemic fairness in sentencing requires reasonable consistency.[7]As Atkinson J said, in R v Tran [2007] QCA 221 at [32], “It would seem fair that the sentence imposed on an offender for a federal offence should not depend on which side of a State border he or she happens to offend”. In the same case, Keane JA said at [8]:
“Where the system of criminal justice is enforced by the judicial power of the Commonwealth, State courts exercising that power should strive for reasonable consistency in the sentences imposed throughout the Commonwealth.”
- [21]In my respectful opinion, the learned magistrate was wrong to reject as irrelevant a decision from New South Wales, particularly an appellate decision.
- [22]The table of cases tendered to the sentencing court was entitled ASIC Queensland Regional Office Range of Comparatives for s 475 and s 530A of the Corporations Act 2001 (Cth). It contained only Queensland Magistrates Court decisions, 104 of them, dating from 4 June 2015 to 14 April 2017, 55 being decisions of the learned sentencing magistrate. In the column headed “Considerations” were 5 dot points. A typical example was:
Exparte
Plea: N/A
Compliance: No
Deficiency: $141,813
Prior history: None
- [23]Nearly all cases were heard ex parte with a plea reading “N/A”. In only one case was there a (written) plea of not guilty. In only 14 cases did the defendant appear. In only 11 cases was there compliance, although in two more cases there was partial compliance. In every case there was no prior history. The amounts of deficiency ranged widely from about $5,000 to $7,689,717. In every case except one, convictions were recorded and fines imposed. To some degree the fines varied according to the amount of the deficiency. A low range fine for the breach of s 530A would be $1,000 to $1,500. Sometimes a magistrate imposed a “global” fine for several offences. The global penalty in the case of the $7.7m deficiency was $10,000. In 28 cases the deficiency was greater than in the present case.
- [24]In the exceptional case contained in the table, the details showed the defendant had appeared at court; pleaded guilty to two charges under s 530A and also one under s 475 of the Corporations Act[8]; had made compliance; had no prior history and the deficiency was $467,775 – much higher than in the appellant’s case. The disposition is described as “No convictions recorded (all charges); 18 month Good Behaviour Bond, $3,500 recognizance”. Further examination of the comparability of the case is, of course, impossible, illustrating the shortcomings of the table as a guide.
- [25]In terms of the data available in the table, the appellant was one of about 11% of defendants who ultimately fully complied with the liquidator’s requests and one of about 14% who appeared at court.
- [26]In Kassem v R [2015] NSWDC 217, the appellant was charged with 7 offences contrary to s 530A of the Corporations Act. He was the director of 7 companies which conducted a business called “Pram Warehouse”, mostly in south-east Queensland but also in other States, to which the liquidator was appointed under a creditor’s voluntary winding up. The appellant told the District Court judge he had sought the winding up. On 2 June 2014 and 9 July 2014, the liquidator wrote seeking a report and delivery of the books of the companies. On 23 September and 20 October 2014, there having been no response, ASIC issued warnings.
- [27]On 25 October 2014, the appellant wrote to the liquidator suggesting she direct enquiries to his accountant. A court attendance notice was served on 18 November 2014. The magistrate dealt with the appellant under s 20(1)(a) of the Crimes Act1914 (Cth), convicting him and releasing him on recognizance.
- [28]The appellant explained to the appeal judge that after the appointment of the liquidator he was besieged by inquiries from customers, suppliers and landlords. He became unable to pay rent for a number of stores. He also told the judge that when a landlord entered into possession, in late October or November 2014, he was denied access to the companies’ documents kept on those premises.
- [29]The judge concluded there were “mitigating circumstances which prevented the appellant giving the attention which he should have given to the notices”. These constituted extenuating circumstances which, with the appellant’s good character and antecedents, led to the conclusion that an order under s 19B was appropriate.
- [30]Consistency in sentencing does not require unconsidered adhesion to a trend apparent in decided cases. This is particularly so where the evidence of the trend is little more than a statistical table. In DPP v Dalgliesh (a pseudonym) [2017] HCA 41, Gageler and Gordon JJ said at [83],
“Sentences are not binding precedents, but are merely “historical statements of what has happened in the past.”[9]
- [31]As I have recorded, in the present case, the learned magistrate said he reduced the fines imposed to take into account, among other things, the appellant’s actual appearance and plea of guilty. Otherwise, his Honour said the case was not exceptional. But the question was not whether the case was exceptional, unless by that expression the learned magistrate meant that taking into account all relevant considerations, including the applicable matters set out in s 16A of the Crimes Act 1914 (Cth), s 19B – the only provision for disposing of a case without a recorded conviction – was not engaged.
- [32]The learned magistrate remarked, during submissions, that s 19B was “not a mere peg on which to hang...leniency”. As Counsel for the respondent pointed out, the quote comes from the High Court decision in Cobiac v Liddy (1969) 119 CLR 257. Windeyer J said, of a similarly worded South Australian provision,
“The magistrate must be of the opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. ... Its, or their, existence must…reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words.[10]None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.”[11]
- [33]In Matta v Australian Competition and Consumer Commission [2000] FCA 729 at [3], French J (as he then was) said “The exercise of the discretion under s 19B is exceptional.”
- [34]In Guerrero v Dickson [2013] WASC 246 at [31], Hall J of the Western Australian Supreme Court, collected other descriptions: ‘rare’, ‘unusual’, ‘atypical’, ‘special or singular’.[12]
- [35]Accurate as these descriptions might be of the incidence of the making of orders under s 19B, none appears in s 19B. They are not rules (of thumb) and like other labels or glosses on principles or legislative provisions, may mislead. In each case, where consideration of s 19B arises, the task of the court is to consider its provisions. Hall J described the process:
“In determining whether it is open to make a s 19B order a court must first consider whether there is information that falls under any of the criteria listed in s 19B(1)(b)(i)(ii) or (iii). If there is, it is then necessary for the court to consider whether, having regard to those matters, it is inexpedient to inflict any punishment or to inflict only nominal punishment or to release the offender on probation without recording a conviction. Thus there is what has been referred to as a two-stage test.”[13]
- [36]In the present case, the learned magistrate’s focus on whether the appellant had presented exceptional circumstances may have distracted him from a proper consideration of s 19B.
- [37]Section 16A of the Crimes Act 1901 (Cth) provides for the matters a court must consider when sentencing for federal offences. The first is to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Leaving out parts that are not relevant to this case, subsection (2) provides:
- (2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
- (a)the nature and circumstances of the offence;
- (b)other offences (if any) that are required or permitted to be taken into account;
- (c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;
- (d)the personal circumstances of any victim of the offence;
- (e)any injury, loss or damage resulting from the offence;
- (f)the degree to which the person has shown contrition for the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
- (ii)in any other manner;
- (g)if the person has pleaded guilty to the charge in respect of the offence--that fact;
- (h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
- (j)the deterrent effect that any sentence or order under consideration may have on the person;
(ja)the deterrent effect that any sentence or order under consideration may have on other persons;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n)the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.
- [38]Section 19B of the Crimes Act 1901 (Cth) provides:
(1) Where:
- (a)a person is charged before a court with a federal offence or federal offences; and
- (b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order:
- (c)dismiss the charge or charges in respect of which the court is so satisfied; or
- (d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph(c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
- (i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
- (ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
- (A)on or before a date specified in the order; or
- (B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; and
- (iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph(i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
- [39]The terms of s 19B allow that it may be thought applicable to a range of cases where although the offender need not be convicted, he or she should be bound to be of good behaviour for up to 3 years; pay reparation, restitution or compensation and comply with conditions including probation for up to 2 years. Did the provision apply to the present case?
- [40]The obligations created in s 530A, among others, exist to aid liquidators in their extensive duties and responsibilities.[14]There is a strong public interest in the efficient winding up of companies upon the appointment of liquidators. Among other things, there may be creditors waiting for so much of the amounts owed as they will ever receive. Delayed co-operation is likely to prolong the liquidation process, consuming resources, possibly facilitating dishonesty and reducing the funds ultimately available to creditors. It is no light matter to fail to co-operate with the liquidator in the manner required by s 530A of the Corporations Act.
- [41]In the present case, the liquidator was appointed on 26 February 2016 and wrote to the appellant on 29 February 2016. The appellant supplied two boxes of records on 9 March 2016. The liquidators wrote on 4 April 2016, telephoned on 27 April 2016, wrote again in May 2016 and notified ASIC in September 2016 of the non-compliance. On 26 September 2016 ASIC issued a warning letter and wrote on 18 October 2016. The appellant’s solicitor wrote to the liquidator on 19 October 2016 and there was further correspondence into late November. The complaint was filed on 9 March 2017. These were not obviously trivial offences.
- [42]In the written submissions before the learned magistrate, counsel submitted the appellant was quick to respond to the liquidator’s first request, providing documents within weeks. Later, it emerged that a USB stick containing MYOB files was corrupted but the material was able to be recovered and was eventually produced in May 2017. In the meantime, the appellant had co-operated with the liquidator in the sale of assets. The appellant had not been mischievous or evasive. The appellant had supplied materials to his legal representative. In fact, the submission asserted that the extensive delay could “only be explained by miscommunication between the liquidator and the defendant’s legal representative and the defendant.” The appellant had found the winding up process traumatic and although employees received all payments, the appellant was “devastated as to the inability to continue to employ the five drivers.”
- [43]The material before the learned magistrate supported the submission made, that the winding up of the company took a heavy emotional toll on the appellant and his wife. Referees attested to his fine character and I have referred to the doctor’s statements.
- [44]In my respectful opinion, the unchallenged material supports findings that the appellant failed to comply with the liquidator’s demands when he was suffering considerable stress after the failure of his company; he complied to some degree quickly; the failure to comply fully seems to have come about for reasons not directly under his control; the appellant acted without mischief or evasion; ultimately, although not until after the complaint had been made, full compliance was achieved; the appellant attended court and pleaded guilty.
- [45]In my opinion, paragraphs 19B(1)(b)(i) and (iii) are engaged and lead to the conclusion, in the circumstances of this case, that it would be inexpedient to impose other than nominal punishment. I conclude the sentence imposed was excessive. The appeal is to be allowed, setting aside the order of the learned magistrate and in its place order, under s 19B(1)(d)(i), that the appellant be discharged without conviction upon his giving security by recognizance in the sum of $2500 that he will be of good behaviour for the period of 2 years.
- FACTS AS ALLEGED
1.1On 26 February 2016 Gavin Charles Morton of Morton's Solvency Accountants wasappointed Liquidator of All Transport Solutions Pty Ltd (the Company).
1.2The Defendant, Peter Livingstone Cole, was a Director of the Company at the time the Company was wound up.
1.3The Liquidators' office wrote to the Defendant on 29 February 2016 requesting the Defendant to inter alia provide the Liquidators with the books and records of the Company and a Director's Questionnaire. The letter was addressed to the Defendantand included a blank Director's Questionnaire.
1.4On 9 March 2016 the Defendant provided two boxes of records to the Liquidator. The records provided consisted of various invoices paid, bank statements, motor vehicle tax invoices and various solicitor correspondences.
1.5Not having received sufficient books and records of the company nor a Director's Questionnaire, on 4 April 2016 the Liquidators again wrote to the Defendant requiring him to deliver to the Liquidator all books and records of the company, specifically records pertaining to assets purchased and sold by the company and to complete and submit a Director's Questionnaire. A copy of this letter was also sent to the Defendant's legal representative, SS Lawyers by email.
1.6On 27 April 2016 a staff member of the Liquidator's office telephoned the Defendant. The Defendant confirmed that he had received their correspondence dated 4 April 2016 and advised that he would respond by 29 April 2016.
1.7Not having received a response from the Defendant, on 12 May 2016 the Liquidator's office again wrote to the Defendant requiring him to deliver to the Liquidator all books and records of the company, specifically in relation to assets purchased and sold by the company and to complete and submit a Director's Questionnaire.
1.8On 14 September 2016, not having received the relevant material, the Liquidators notified ASIC of the Defendant's non-compliance.
1.9On 21 September 2016 ASIC issued a warning letter to the Defendant at 10 Aleisha Court, Murrumba Downs Qld 4503 -being the last address listed for the Defendant on ASIC company records. The letter requested the Defendant to deliver to the Liquidator all books and records of the company and to complete and submit a Director's Questionnaire by 2 October 2016.
1.10On 18 October 2016 ASIC wrote to the Defendant by email [email protected] requesting that he deliver to the Liquidator all books and records of the company and to complete and submit a Director's Questionnaire by 28 October 2016
1.11On 19 October 2016 SS Lawyers wrote to the Liquidator by email advising that he would provide the asset list shortly and was waiting for his client to advise.
1.12On 9 November 2016 the Defendant's wife wrote to ASIC by email advising that she gave the company file to SS Lawyers on 25 May 2016.
1.13On 17 November 2016 ASIC wrote to the Defendant by email and advised that the requested company records and the Director's Questionnaire remained outstanding.
1.14On 25 November 2016 an ASIC officer telephoned Sam Sciacca of SS Lawyers. Mr Sciacca advised that his office had already sent two boxes of records by courier. Mr Sciacca was advised that the Liquidator had specifically requested documents relating to the sale and transfer of assets, further the Director's Questionnaire was also outstanding. Mr Sciacca advised that he would get his client in for an hour to complete the Questionnaire and said he was confident the documents would be provided to the Liquidator's office by 5 December 2016. He said he would contact the Liquidator's office regarding the matter.
1.15To date the requested records in relation to assets purchased and sold by the company and the Director's Questionnaire has not been received by the Liquidator.
1.16The Liquidator has estimated the deficiency in regards to the Company to be in the order of $259,750.
Footnotes
[1]Transcript of Reasons at 2.14.
[2]House v The King (1936) 55 CLR 499 at 505.
[3]An estimate of the company's position once the assets have been realised and the debts have been paid out.
[4]Transcript of Hearing 1.5: 4-6.
[5]Transcript of Hearing 1.5: 10-12.
[6]Transcript of Hearing 1.5: 34-35.
[7]Wong v The Queen (2001) 207 CLR 584 per Gleeson CJ at [6].
[8]Failing to submit a report to the liquidator.
[9]Citations omitted.
[10]Italics added.
[11]Cobiac v Liddy (1969) 119 CLR 257 at 276.
[12]Citations omitted.
[13]Guerrero v Dickson [2013] WASC 247 at [32].
[14]See brief discussion in Morton v Robins (1996) 14 ACLR 1197; Whitemore Holdings Ltd (in liquidation) [2004] FCA 806 at [9] and Commissioner of Taxation v Warner [2015] FCA 659 at [31] – [34].