Duncan and A committee convened under section 40-45 of the Insolvency Practice Schedule (Corporations)
[2024] AATA 609
•4 April 2024
Duncan and A committee convened under section 40-45 of the Insolvency Practice Schedule (Corporations) [2024] AATA 609 (4 April 2024)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2023/1930
Re:Cameron Lindsay Duncan
APPLICANT
AndA Committee convened under section 40-45 of the Insolvency Practice Schedule (Corporations)
RESPONDENT
DECISION
Tribunal:Deputy President Bernard J McCabe
Date:4 April 2024
Date of written reasons: 4 April 2024
Place:Sydney
The decision of the committee is set aside. The Tribunal decides in substitution that Mr Duncan’s registration as a liquidator should be reinstated subject to the conditions set out in annexure ‘A’ to these reasons.
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Deputy President Bernard J McCabe
Catchwords
CORPORATIONS LAW – review of decision to cancel a liquidator’s registration – whether the applicant meets the requirements prescribed by the Insolvency Practice Schedule and Rules.
Legislation
Corporations Act 2001 (Cth)
Insolvency Practice Rules (Corporations) 2016 (Cth)Personal Properties Securities Act 2009 (Cth)
Cases
Re Taylor, Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 (Re Taylor)
Re Adoption of BW [2017] NSWSC 174Re an Infant [1981] Qd R 225
REASONS FOR DECISION
Deputy President Bernard J McCabe
4 April 2024
Cameron Duncan is an insolvency practitioner. He has lived and worked in Singapore for over a decade. Prior to 2012, he lived and worked as a registered liquidator in Australia. He has sought to retain his registration as a liquidator in this country even though his practice focuses on Singaporean and Indonesian clients.
The Australian Securities and Investments Commission (ASIC) became concerned that Mr Duncan’s continued absence from Australia compromised his ability to continue working here. It issued a notice under s 40-40(1)(a) of Schedule 2 to the Corporations Act 2001 (Cth) (the Schedule) requiring Mr Duncan to provide a written explanation as to why he should continue to be registered as a liquidator given ASIC was concerned he “no longer had the qualifications, experience, knowledge and abilities prescribed under paragraph 20-20(4)(a)” of the Schedule. The referral made clear there is no question over Mr Duncan’s qualifications or his ability; ASIC was more concerned about his current knowledge and recent experience.
Mr Duncan provided a written explanation but ASIC was not satisfied. A committee was convened to consider the issue pursuant to s 40-45 of the Schedule. Mr Duncan appeared before the committee. He was questioned about aspects of his current knowledge of insolvency practice in Australia. The committee was not satisfied with his answers and decided to cancel his registration under s 40-55 of the Schedule. Mr Duncan has asked the Tribunal to review that decision.
ASIC has also questioned whether Mr Duncan is an Australian resident. If he is no longer an Australian resident, that is a further ground for inviting him to show cause why his registration should not be cancelled: s 40-40(1)(n). The question of residency and its implications is now before the Tribunal although ASIC made clear in its submissions that it was less concerned about the residency question than the applicant’s knowledge and experience.
The Tribunal steps into the committee’s shoes when making a decision under s 40-55 of the Schedule. (As a formal matter, the committee is the decision-maker even though ASIC has carriage of the proceedings.) The powers available under s 40-55 include the power to suspend or cancel Mr Duncan’s registration as a liquidator. I also have the power to impose conditions on Mr Duncan’s registration.
The powers in s 40-55 are discretionary. I am not obliged to suspend or cancel (for example) even if I have concerns about Mr Duncan’s knowledge or experience, or about his status as a resident. Those are certainly matters which must be considered, but my obligation is to make the correct or preferable decision in all the relevant circumstances.
I had the opportunity to observe Mr Duncan’s performance in the witness box where he was able to demonstrate his knowledge of Australian insolvency law and practice. I was also provided with additional material that elaborated on his experience. On the basis of that more extensive record, I am satisfied Mr Duncan does have adequate knowledge and experience to remain registered as a liquidator. While questions remain as to Mr Duncan’s residency status, the parties acknowledge any concerns can be adequately addressed through the imposition of conditions in an agreed form. I am therefore satisfied it is appropriate to set aside the decision cancelling Mr Duncan’s registration and restore it subject to conditions that relate to residency. I explain my reasons below.
Mr Duncan’s professional history
The facts in this case were largely agreed between the parties. Most of the relevant facts were contained in two statements (exhibits one and two) made by Mr Duncan. What follows next is uncontroversial.
Mr Duncan holds degrees in law and economics from an Australian university. Between 1994 and 2008, he worked in several major accounting and insolvency firms including Arthur Andersen, KPMG, Ernst & Young and Korda Mentha. Most of that work took place in Australia although he did work in the Bangkok office of Arthur Anderson between 1999 and 2003. In 2008, he applied to become a registered liquidator in Australia. He was registered as a liquidator in this country on 18 March 2009 after completing the relevant courses.
The applicant also became a partner in the Singapore office of Korda Mentha in 2008. He has since become a registered liquidator in that country. He heads a team of insolvency practitioners that conduct a practice which services clients in Singapore and Jakarta. Information provided at the hearing suggests he has been extensively involved in many large, high-profile liquidations. I infer Mr Duncan enjoys a good reputation as a liquidator in Singapore. He has not serviced Australian clients in several years although he says Australian partners at Korda Mentha will consult him about liquidations with a transnational dimension. Mr Duncan is currently the Office Managing Partner and Head of Restructuring in Korda Mentha’s Singapore office.
In his statement (exhibit one), Mr Duncan explained he initially expected he would only be in Singapore for up to three years when he first moved there. Events overtook him: he and his wife sold their home in Sydney and the family relocated to Singapore in 2010. He said he ceased residing in Australia around that time and applied for permanent residency in Singapore. He became a permanent resident of Singapore in 2012. He advised ASIC of that change in status in the ordinary course.
At the hearing, Mr Duncan confirmed his professional address was in Singapore. He said he was no longer enrolled to vote in Australia. He is also a resident of Singapore for taxation purposes.
Mr Duncan’s wife and daughter returned to Australia to live in a property the family acquired in Sydney in 2021. (I infer the onset of the Covid-19 pandemic had something to do with the timing.) Mr Duncan remains behind in Singapore where he lives in a small apartment. He says he wants to return to live in Australia with his family but professional commitments in Singapore prevent him from doing that in the short term. With that reality in mind, he has recently taken out a new two-year lease on an apartment in Singapore. He says he nonetheless spends a significant amount of time in Australia with his family: he says he currently travels here regularly and stays for weeks at a time. He said that he stayed for two months in a single stretch last summer. He said he currently spends up to half of his time in this country. During those visits, he stays at the family home in Sydney and works remotely on his Singapore practice from that address or from the Sydney offices of Korda Mentha.
After moving to Singapore, Mr Duncan retained and renewed his registration as a liquidator in Australia. He said he continued to satisfy the continuing professional education requirements each year. He recalled ASIC wrote to him in mid-2018 asking whether he intended to continue accepting external administration appointments in Australia. ASIC also asked him to explain what steps he was taking to stay abreast of developments in Australian law. ASIC’s interest may have been sparked by reforms in Australian insolvency law that were introduced in 2016 (although I note the enactment of the Personal Properties Securities Act 2009 also post-dated Mr Duncan’s departure for Singapore).
Mr Duncan responded to those queries by asking ASIC to suspend his registration as a liquidator. ASIC agreed to do so until the end of 2019. When the time came for renewal of the (suspended) registration, ASIC again asked Mr Duncan about his intentions. He replied (T documents at p 440) that he wanted to renew but continue with the suspension because he anticipated returning to Australia in 2021. On 2 March 2021 his registration was renewed until March 2023 but he again lodged a request for the registration to be suspended. ASIC suspended the registration for another year and then for a further period expiring on 30 April 2022. Shortly before that period of suspension was to end, he asked ASIC for the suspension to be lifted so he could accept an Australian engagement. A committee convened by ASIC to consider the request was agreeable and the suspension was lifted – although I understand the engagement with an Australian client did not go ahead. Nothing turns on that detail.
The applicant says he continued to meet his professional education requirements throughout the period he was registered even though his registration was suspended.
On 29 June 2022, ASIC sent Mr Duncan the ‘show cause’ letter which triggered the decision-making process that has led us to this review. The interview with the committee occurred on 23 January 2023, and he provided supplementary material to the committee a few weeks later. The committee made its adverse decision on 28 February 2023. Its decision did not deal with the question of residency.
The material before the Tribunal at the time of the hearing
Mr Stack, the counsel for Mr Duncan, submitted the committee’s adverse decision appeared to be premised almost entirely on what it took to be Mr Duncan’s sub-optimal performance when questioned at their meeting. Mr Stack said the questioning at the meeting did not proceed in a way that was fair to the applicant, although Mr Stack also argued the committee should not have questioned him for reasons I will shortly discuss. In any event, Mr Stack argued Mr Duncan was unable to give a proper account of his expertise and knowledge on that occasion. I was told the material before the Tribunal at the hearing should put any doubts about those matters to rest.
Mr Duncan’s statement confirmed he completed a range of professional educational courses that are relevant and appropriate for a registered liquidator. Further information about the content of those courses was provided in written submissions delivered just before the hearing. His supplementary statement (exhibit two) sets out an extended description of his relevant experience in insolvency practice in recent years. The statement details a succession of significant engagements as a liquidator and administrator. There is no doubt he undertook that work at a senior level: he referred to appointments where he was a principal, or advised or reported to the principal, or advised the appointor. His responsibilities extended to overseeing a wide range of relevant functions, including instructing lawyers and evaluating legal advice. He also pointed out he operates at a senior level within the framework of a large transnational (but Australian-based) insolvency firm which includes an extensive knowledge base relevant to Australian law and insolvency practice.
Mr Duncan also produced material that compared the provisions of Singaporean insolvency law with the equivalent provisions in Australia. When questioned about this comparison during cross-examination, Mr Duncan noted the material was sourced from the firm’s knowledge database but he demonstrated an easy familiarity with the material in his answers.
Mr Knowles, the counsel for ASIC and the committee, cross-examined Mr Duncan on his knowledge of Australian law. While Mr Stack initially objected to that course given his argument that there was no basis for requiring Mr Duncan to submit to such a test, I decided to proceed on the basis of what amounted to a voir-dire. It was agreed I would hear the evidence and decide what to make of it with the benefit of submissions. With that objective in mind, Mr Knowles asked Mr Duncan open-ended questions about aspects of Australian insolvency law. The questions were directed to issues which appeared to trouble Mr Duncan at the meeting of the committee. The cross-examination amounted to what might be described as a ‘do-over’, or even a ‘make-up’ exam.
Mr Knowles’ approach to the cross-examination was scrupulously fair and constructive, and in the best traditions of a model litigant.
Mr Duncan’s answers appeared to demonstrate a familiarity with, and insight into, Australian insolvency law and practice. He was particularly animated in his discussion of the relative merits of the administration process in Australia compared with judicial administration in Singapore. While acknowledging there were differences between the two systems, Mr Duncan said the insolvency practices in both countries operated along similar lines so that experience in one system was readily translated to the other.
At the conclusion of the cross-examination, Mr Knowles took instructions and acknowledged that Mr Duncan’s performance in the witness box demonstrated proficiency in areas of knowledge where the committee had previously found him deficient. He said he was unable to go any further and abandon ASIC’s contention that Mr Duncan did not have the experience and knowledge required given the underlying fact that Mr Duncan had been effectively out of any Australian insolvency practice for some years. The reluctance or inability to make that more generous concession was attributed to the fact ASIC was not formally the decision-maker.
As I shall explain, I agree with Mr Stack that, based on all the material before me at the hearing, Mr Duncan does appear to have an appropriate level of knowledge and expertise. To make good that finding, I need to address the relevant law. I will come to that below.
The legislation and its operation in this case
I have already referred to the provisions of the Schedule which regulate insolvency practitioners. I should first explain the structure of the wider regulatory arrangements in some little detail because questions of statutory interpretation arise in this case.
Part 2 of the Schedule includes the provisions governing the registration and discipline of liquidators. Section 20-5 provides that an individual may apply to be registered as a liquidator. A committee is struck under ss 20-10 and 20-15; when considering an application, the committee must interview the applicant and may require the applicant to sit an exam: s 20-20. The committee is required to register the applicant if it is satisfied as to the various matters set out in s 20-20(4). The first of these (at s 20-20(4)(a)) is that the applicant “has the qualifications, experience, knowledge and abilities prescribed” (emphasis added). The prescribed matters are set out in s 20-1 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (the IPR). Relevantly, s 20-1(2) of the IPR provides:
(2) A committee to which an application for registration as a liquidator to which this section applies is referred under section 20‑15 of the Insolvency Practice Schedule (Corporations) must be satisfied that the applicant has each of the following qualifications, experience, knowledge and abilities:
(a) the applicant has completed the academic requirements for the award of a tertiary qualification that includes at least 3 years of full‑time study (or its equivalent) in commercial law and accounting;
(b) the applicant has completed the academic requirements for at least 2 course units accredited under the Australian Qualifications Framework Level 8 (or equivalent study) in the practice of external administrators of companies, receivers, receivers and managers, and trustees under the Bankruptcy Act 1966;
(c) if the applicant wishes to be registered to practise as an external administrator of companies, receiver and receiver and manager—the applicant has, during the 5 years immediately preceding the day on which the application is made, been engaged in at least 4,000 hours of relevant employment at senior level;
(d) if the applicant wishes to be registered to practise only as a receiver, and receiver and manager—the applicant has, during the 5 years immediately preceding the day on which the application is made, been engaged in at least 4,000 hours of relevant employment at senior level;
(e) the applicant has demonstrated the capacity to perform satisfactorily the functions and duties of a registered liquidator;
(f) the applicant is able to satisfy any conditions to be imposed under the Insolvency Practice Schedule (Corporations) if the applicant is registered as a liquidator.
The applicant was able to meet those requirements (or their equivalent at the time) when he was first registered. There is no doubt, for example, that he had appropriate qualifications, and he had done a lot of insolvency work in Australia prior to 2009 when he was first registered here. But some of the requirements in s 20-1(2) of the IPR – specifically the requirement that the applicant have completed 4000 hours of relevant employment in the preceding five years – would be a problem for Mr Duncan if applied to him in 2024 given he had not actively practised in this country for several years.
Mr Stack said the requirements in s 20-1(2) of the IPR do not apply to Mr Duncan because he is already registered as a liquidator. Mr Stack pointed out the requirements which must be satisfied by a liquidator seeking renewal of their registration are much less onerous that those applying to new registrants. In particular, there is no requirement for an already-registered liquidator to establish knowledge or experience with reference to IPR 20-1(2). Relevantly, s 20-75(1) of the Schedule provides:
(1) On application under section 20- 70, ASIC must renew the registration of the applicant as a liquidator if:
(a) the application is properly made; and
(b) the applicant has produced evidence in writing to ASIC that the applicant maintains:
(i) adequate and appropriate professional indemnity insurance; and
(ii) adequate and appropriate fidelity insurance;
against the liabilities that the applicant may incur working as a registered liquidator; and
(c) the applicant has complied with any condition dealing with continuing professional education to which the applicant is subject during the applicant's current registration.
ASIC accepts an applicant for renewal of registration as a liquidator does not have to refer to the requirements in s 20-1(2) of the IPR. But ASIC points out the decision-making process in this case does not relate to an application for renewal. It follows from a referral under s 40-40 of the Schedule.
Division 40 of the Schedule deals with disciplinary and other regulatory action against a liquidator. Section 40-40 empowers ASIC to require a liquidator to issue a show cause notice if ASIC believes that one or more of the things referred to in s 40-40(1)(a)-(n) has come to pass. Relevantly:
·Section 40-40(1)(a) refers to a belief that “the liquidator no longer has the qualifications, experience, knowledge and abilities prescribed under paragraph 20-20(4)(a)”; and
·Section 40-40(1)(n) refers to a belief that “the liquidator is not resident in Australia or in another prescribed country.” (I should note at once there is no other country prescribed for the purposes of this provision.)
ASIC can refer the matter to a committee constituted for the purpose of making a decision under s 40-55(1). The committee – and the Tribunal on review – may have regard to a wide range of information specified in s 40-55(3).
An obvious question arises: what criteria should the committee (and the Tribunal) apply when considering whether a liquidator has the requisite “qualifications, experience, knowledge and abilities”? ASIC says the answer to that question is clear on the face of the provision: the criteria “prescribed under paragraph 20-20(4)(a)”, being the same criteria that apply to new applicants for registration. Mr Knowles said that brings us back to s 20-1(2) of the IPR.
Mr Knowles said the problematic requirement posed by s 20-1(2)(c) (which requires 4000 hours of recent relevant experience) was not in and of itself fatal to Mr Duncan’s application. Given the committee’s power to suspend or cancel or take other action was discretionary, a decision-maker would be entitled to give that particular requirement little or no weight if minded to do so. He made the same submission in relation to the Australian residency consideration in s 40-40(1)(n). Mr Knowles said ASIC did not regard the applicant’s residency status as something that would, of itself, justify the cancellation in all the circumstances of this case.
In the alternative, Mr Knowles suggested it was possible to read down some of the requirements in s 20-1(2)of the IPR when considering a referral under s 40-40 of the Schedule. He argued some of the requirements in s 20-1(2) were ‘once and done’ requirements – most obviously the requirement that one obtain certain credentials. Mr Stack effectively made the same argument although his primary position was that s 20-1 of the IPR simply did not apply to Mr Duncan because he was already a registered liquidator and the headings and text of the provision referred to applicants and applications for registration at an early stage of their careers (ie, those who had not previously been registered).
The better view is that suggested by Mr Knowles. There is no escaping the explicit reference in s 40-40(1)(a) back to the criteria prescribed for s 20-20(4)(a), which inevitably brings us to s 20-1 of the IPR. Having said that, it is appropriate to read each of those criteria critically and apply them or give them no weight as appropriate when exercising the discretion.
When I have regard to the criteria in s 20-1(2) of the IPR, there is no dispute the applicant satisfies (or has satisfied in the past) criteria (a) and (b). Criterion (d) does not apply, and there is no reason to suppose criterion (f) is in issue. That leaves only criteria (c) (which refers to 4000 hours recent relevant work experience) and (e) (which refers to a “demonstrated…capacity to perform satisfactorily the functions and duties of a registered liquidator”). Give the applicant’s seniority as a registered liquidator, his history in Australia, and his experience in senior roles in an Australian insolvency firm and in his practice in an analogous system in Singapore, I am not inclined to give criterion (c) any weight. Given that background and experience recorded in the applicant’s statements, and given:
·the evidence he had recently completed relevant courses of study; and
·the level of knowledge and familiarity with Australian insolvency law and practice during cross-examination,
I am inclined to give significant weight to criterion (e). To be clear, I am satisfied Mr Duncan clearly demonstrated (when giving evidence at the hearing, and in the material he submitted - especially the contents of exhibit two and the additional documents supplied with the written submissions in reply) that he possesses the capacity to perform the functions of a registered liquidator in Australia notwithstanding his absence from these shores.
That leaves only the question of residency. By his own admission, Mr Duncan’s residency is currently “fluid”. He appears to divide his time between Australia and Singapore. Some of the common indicia of residency suggest he is ordinarily resident in Singapore: his professional practice is located there, he has a fixed address there, and he no longer votes in Australia. Even when he returns to Australia, he works remotely on his Singaporean practice. He also pays tax in Singapore on the basis that he is no longer an Australian resident for tax purposes.
Mr Stack referred to authorities including Re an Infant [1981] Qd R 225, Re Taylor, Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 (Re Taylor), and Re Adoption of BW [2017] NSWSC 174 which confirm one can be a resident in more than one place. (He noted the legislation in question here referred to being a resident; it did not ask where one was ordinarily resident.) Mr Knowles said I should remember the use of the expression ‘resident’ in the legislative scheme must be understood in its context. The purpose of the scheme (which can be readily divined from the text) is to ensure that liquidators meet standards of integrity and proficiency. In those circumstances, the requirement to maintain a residence was not limited to having a physical presence in this country, something that Mr Duncan was arguably doing in recent times when he spent a significant part of the year here. Mr Knowles suggested it was necessary to be present in Australia and be working as part of the Australian insolvency profession. To put it differently, Mr Knowles was essentially arguing the residency requirement was really concerned with ensuring practitioners were immersed in an Australian professional milieu. Mr Stack said the legislation should not be read that broadly: if that objective were intended, he argued, the legislation would have made that requirement explicit. He said ASIC was asking the word ‘resident’ to do too much work.
ASIC’s argument makes sense as a matter of policy. Treating the residency criterion as if it focused on questions of abode rather than as a requirement that one be present and engaged in the local profession does not do very much. But I also take Mr Stack’s point that the word ‘resident’ would not ordinarily extend that far. I accept he is right about that as a matter of statutory interpretation.
While I accept Mr Duncan is currently dividing his time almost equally between his base in Singapore and his family in Australia where his wife and daughter reside, there must still be some doubt as to whether he resides here or just makes extended visits. If that pattern were to persist over time, it may be enough to clearly establish residency in this country, but there is sufficient doubt at this point that I am not comfortable making that finding. As it happens, the applicant does not seriously contest a finding that he is not a resident of Australia, and (as I have already explained) ASIC does not regard the question of residency as decisive in the circumstances of this case. Both parties agreed a set of conditions that were acceptable and asked me to impose those conditions if I were otherwise minded to restore the applicant’s registration.
I have perused the conditions and I am satisfied they are appropriate in that they are consistent with the text and policy objectives of the legislative scheme, and proper in all the circumstances of this case.
Conclusion
The decision of the committee is set aside. I decide in substitution that Mr Duncan’s registration as a liquidator should be reinstated subject to the conditions set out in annexure ‘A’ to these reasons.
I note in passing that Mr Duncan was upset ASIC issued a press release announcing the committee’s decision on 15 March 2023 under the headline “Liquidator disciplinary committee cancels registration of Cameron Lindsay Duncan”. He did not dispute that ASIC was entitled to publicise the decision, but he regrets the announcement may have created the impression that he was subject to disciplinary proceedings on account of misbehaviour or professional malfeasance. ASIC made clear at the hearing that there was no suggestion Mr Duncan had done anything wrong. There appears to be no doubt he enjoys a good (and apparently well-deserved) reputation as an insolvency practitioner. The reference to a ‘disciplinary committee’ was a product of the fact the committee which made the decision was convened under the legislated disciplinary provisions.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe
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Associate
Dated: 7 and 8 March 2024
Date(s) of hearing:
Counsel for the Applicant:
Mr David Stack Counsel
Solicitors for the Applicant:
Baker McKenzie Lawyers
Counsel for the Respondent:
Mr Patrick Knowles SC
Solicitors for the Respondent:
Australian Securities and Investments Commission
ANNEXURE A
Conditions: Australian Insolvency Experience
For such time as the Registered Liquidator remains a non-resident of Australia, the following conditions apply to the Registered Liquidator's registration, except to the extent of any inconsistency with court or tribunal orders or written instructions by the Australian Securities and Investments Commission ("ASIC"):
CONDITION 1
1.The Registered liquidator can only accept Australian appointments on a joint and several basis with another person who is registered as an Australian liquidator. That person must be ordinarily resident in Australia and her/his own registration must not be subject to a condition requiring joint appointments with another registered liquidator.
CONDITION 2
2.The Applicant will appoint, upon recommencement of his registration, and
then retain, for 5 years (or such other time period as agreed with ASIC) after the finalisation of his last Australian external administration or controller appointment, an Australian solicitor (practising from an office located in Australia) in order to accept service on his behalf. Written notice of this solicitor's details will be provided to ASIC, as well as creditors in his Australian appointments.
CONDITION 3
3.The Applicant will accept as valid service any court documents, as well as statutory notices and/or directions under the Australian Securities and Investments Commission Act 200 I (Cth) and the Corporations Act 2001 (Cth), which are served to him via his Australian solicitor referred to in Condition 2.
CONDITION 4
4.The Applicant will comply with any such statutory notices and/or directions so served on him via his Australian solicitor notwithstanding any legal arguments which may be available to him in respect of the validity and/or enforceability of such notices due to his physical presence being outside of Australia, so long as those statutory notices and/or directions would be lawful if they had been issued to, and served on, him whilst he was physically within Australia.
CONDITION 5
5.In circumstances where the Applicant is overseas but is required to be present in Australia by either Court or ASIC, he will return to Australia within 7 days or within such other time period as agreed with ASIC. If the Applicant is unable to return to Australia due to international travel restrictions, he will make himself available to either the Court or ASIC within 7 days or within such other time period as agreed with ASIC, by video or other visual electronic means.
CONDITION 6
6.When consenting to act in Australian external administration or controller appointments, the Applicant will notify the appointor of his country of residency, or if he is a dual resident, his countries of residency and the location of his principal place of practice. Once appointed, the Applicant will make that same disclosure to creditors when he first communicates with them.
CONDITION 7
7.If the Applicant changes his country or countries of residency and/or his principal place of practice, he must notify the appointor and creditors in respect of any then current Australian external administration or controller appointments in writing of his new country or countries of residency and/or his principal place of practice within 14 days of the date of the change.
CONDITION 8
8.The Applicant will keep and will take all possible steps to ensure his firm KordaMentha, keeps and maintains the following records in Australia or at some other location as agreed with ASIC until such time as they can be properly destroyed in accordance with Australian law:
any books and records in relation to an external administration or controller appointment concerning an Australian registered company;(A)
the Australian registered company's preappointment records;(B)
KordaMentha's business records in respect of its practice in Australia; and(C)
a copy of all engagement working files in relation to an external administration or controller appointment concerning an Australian registered company.(D)
CONDITION 9
9.In respect of Australian external administration and controller appointments, he will open and then maintain all external administration and controller bank accounts in Australia, provided that he may maintain ancillary accounts in other jurisdictions for the external administration’s convenience. All monies received from Australian appointments shall be paid into these Australian bank accounts and all payments relating to Australian appointments shall be paid from these Australian bank accounts.
CONDITION 10
10.The Applicant will ensure that his firm, KordaMentha, will maintain an Australian telephone number at which he can be contacted.
CONDITION 11
11.Prior to accepting his first Australian external administration or controller appointment, he will provide ASIC with evidence that his firm KordaMentha has entered into a licence agreement with an Australian specialist insolvency software provider and has in place precedents, templates and checklists which are in conformity with Australian law.
CONDITION 12
12.The Applicant will maintain residency in Singapore and/or Australia, or as such other location as agreed with ASIC.
CONDITION 13
13.The Applicant will not seek to recover travel costs or expenses (including, but not limited to, airfares or accommodation) against the Australian registered company to which he has been appointed that would not ordinarily have been incurred by a registered liquidator resident in Australia. This includes any expenses associated with other persons assisting the Applicant (for example, any KordaMentha staff members who travel to assist the Applicant).
CONDITION 14
14.The Applicant will be physically present in Australia for any second meeting of creditors, pursuant to s 439A of the Corporations Act, in a voluntary administration of an Australian registered company to which he has been appointed, where the majority of creditors, by number and value, are within Australia. If the Applicant is unable to return to Australia due to international travel restrictions, he will be present at any such second meeting of creditors by video or other visual electronic means.
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
1 Witness Statement of Cameron Lindsay
Duncan (the Applicant)
A 28 June 2023 28 June 2023 2 Supplementary Witness Statement of Cameron Lindsay Duncan (the Applicant)
A 23 August 2023 23 August 2023
0
2
0