Abichandani and Australian Securities and Investments Commission

This matter concerned an application by Mr. Abichandani for review of a decision by the Australian Securities and Investments Commission (ASIC) to disqualify him from registration as an approved Self-Managed Superannuation Fund (SMSF) auditor. ASIC's decision was based on findings that Mr. Abichandani had engaged in misleading and deceptive conduct and had made false statements in communications with ASIC, thereby failing to meet the "fit and proper person" test for registration. The Senior Member of the Tribunal was required to determine whether ASIC's decision to disqualify Mr. Abichandani was justified.

The central legal issue before the Tribunal was whether Mr. Abichandani's conduct, specifically concerning two audit reports and his subsequent communications with ASIC, demonstrated a lack of integrity or competence such that he was not a fit and proper person to be registered as an SMSF auditor. This involved assessing the truthfulness and intent behind statements made by Mr. Abichandani in emails to ASIC, and considering whether his actions regarding the retention and dating of audit reports constituted a failure to meet professional standards relevant to his registration. The Tribunal also had to consider the weight to be given to evidence of Mr. Abichandani's professional reputation and character.

The Tribunal reasoned that while Mr. Abichandani's conduct in relation to the Iceman audit report, specifically his failure to retain a signed copy and the re-dating of the report without explicit disclosure, was deficient, these actions did not warrant a conclusion that he was not fit and proper. Crucially, the Tribunal found that Mr. Abichandani had made no intentionally false statements to ASIC and that his email statements were not misleading. The Tribunal accepted that another auditor, Mr. Vadher, had undertaken the bulk of the audit work, and that Mr. Abichandani's role had primarily been supervisory and involved signing the reports. The Tribunal also considered evidence of Mr. Abichandani's professional integrity and good character, including testimonials from clients and legal professionals, which were not challenged. Applying the principles from *Ziems v The Prothonotary*, the Tribunal concluded that Mr. Abichandani's conduct, while deserving of some disapproval, did not indicate an underlying lack of fitness and propriety.

Consequently, the Tribunal set aside ASIC's decision to disqualify Mr. Abichandani. The Tribunal found that Mr. Abichandani was a fit and proper person to be registered as an approved SMSF auditor.