O'Sullivan v ASIC

O'Sullivan and Australian Securities and Investments Commission [2017] AATA 644 (2 May 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2015/0837-0838
TAXATION AND COMMERCIAL DIVISION             )

Re: Michael O'Sullivan
Applicant

And: Australian Securities & Investments Commission
Respondent

DIRECTION

TRIBUNAL:               Professor R Deutsch, Deputy President

DATE:   30 May 2017

PLACE:                     Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.the decision on page 1 by deleting “Shaw” and inserting “Sean”;

2.the index on page 11 by deleting “Shaw” and inserting “Sean”;

3.the heading between paragraphs 720 and 721 by deleting “Shaw” and inserting “Sean”;

4.paragraph 721 by deleting “Shaw” and inserting “Sean”;

5.paragraph 748 by deleting “Shaw” and inserting “Sean”.

..................................[sgd].................................

Professor R Deutsch, Deputy President

Division:TAXATION & COMMERCIAL DIVISION

File Number(s):      2015/0837

2015/0838

Re:Michael O'Sullivan

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Professor R Deutsch, Deputy President

Date:2 May 2017

Place:Sydney

The Tribunal affirms the decision of the Australian Securities and Investments Commission dated 16 February 2015 prohibiting Mr O’Sullivan from providing financial services for a period of seven years under s 920A(1)(e) of the Corporations Act 2001 (Cth).

The Tribunal sets aside the decision of the Australian Securities and Investments Commission dated 16 February 2015 made under s 206F of the Corporations Act 2001 (Cth) and in substitution decides that under s 206F of the Act, Mr O’Sullivan is disqualified from managing a corporation for a period of five years with the qualification that Mr O’Sullivan is permitted to remain as a director of three private companies, namely, Bernard Shaw Holdings Pty Ltd, Provident Asset Management Pty Ltd and Amira Holdings Pty Ltd, provided that at no time are those companies involved in any activities which involve persons or entities that are not part of Mr O’Sullivan’s immediate family.

....................................[sgd]....................................

Professor R Deutsch, Deputy President

CATCHWORDS

CORPORATIONS – director – company – debentures – loans – construction loan – arrears – disqualified from managing corporations – failed to discharge duty with required degree of care and diligence – failure to obtain up to date valuations of property – excessive loan to valuation ratio – capitalised interest – changed maturity date of loan – lack of provisioning – misleading or deceptive conduct – disclosure requirements – prospectuses and reports – loan not identified as in arrears or default – material prejudice to debenture holders – failure to ensure information in reports accurate and complete – gained an advantage – release from guarantee – disqualification period appropriate – whether leave to manage certain companies – companies involving immediate family members – banning order – prohibited from providing financial services – failed to comply with financial services law – misleading or deceptive conduct – prospectuses and reports – period of ban appropriate – decision affirmed and decision set aside and decision made in substitution

PRACTICE AND PROCEDURE – application to re-open proceedings –…