Van Vlymen and Secretary, Department of Social Services (Social services second review)

[2023] AATA 3715

Van Vlymen and Secretary, Department of Social Services (Social services second review) [2023] AATA 3715 (14 November 2023)

Division:GENERAL DIVISION

File Number(s):      2021/6281; 2021/6299

Re:Willem Johan Van Vlymen

Margriet Hermine Van Vlymen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 November 2023

Place:Sydney

The decision under review is set aside and remitted for determination of the applicant’s eligibility for age pension under the hardship rules.

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Senior Member A Poljak

Catchwords

SOCIAL SERVICES – Age Pension – assets test – hardship rules – compliance with notice – unknown assets – combined assets exceeding the allowable assets limit – companies to be disregarded because they are in receivership, administration and liquidation – decision under review is set aside and remitted.

Legislation

Social Security (Administration) Act 1999 (Cth)

Cases

Secondary Materials

REASONS FOR DECISION

Senior Member Poljak

10 November 2023

1. On 19 November 2020, Willem and Margriet Van Vlymen, the applicants, submitted claims for age pension (AP). The claims were rejected on 13 April 2021, as it was determined that the applicants' combined assets exceeded the allowable assets limits for age pension.

2. On 17 May 2021, the applicants submitted a claim for age pension for consideration under the hardship rules (the hardship claims). They stated that they believed assets in Orbis Commodities, Pacific Investment Holdings P/L CAN and any related subsidiary/investment should be disregarded when considering their eligibility for the AP as these companies were in receivership, administration, and liquidation.

3. On 20 May 2021, Services Australia (the Agency) made a request for information to Mr Van Vlymen pursuant to section 63 of the Social Security (Administration) Act 1999 (the Administration Act) (the Notice). The information requested was a balance sheet as at 19 November 2020 for Forward Holdings Pty Ltd; and private company modules, income tax returns and financials/balance sheets for the entities Pacific Investment Ltd, Pacific Finance Ltd, Cross Pacific Trading Ltd, Pacific Management Services Ltd, International Comtrade & Shipping Ltd, Russell Islands Plantation Estates Limited and Lever Solomons Limited.

4. The Notice was validly issued under subsections 63(2)(d), (5) and (7) of the Administration Act as it specifically set out the information Mr Van Vlymen was required to provide to the Agency, the specified time in which the information was to be provided (within 14 days), the notices were in writing and sent by post to Mr Van Vlymen's last known postal address and informed Mr Van Vlymen of the consequences of not providing the requested information.

5. Mr Van Vlymen provided a response on 3 June 2021. He advised that Forward Holdings Pty Ltd never traded and no accounts were prepared; he was unable to access requested documents for Pacific Investment Ltd, Pacific Finance Ltd, Russell Islands Plantation Estates Limited, and Lever Solomons Limited; Pacific Management Services Ltd was in receivership since March 2017; information for Cross Pacific Trading Ltd was previously provided; and International Comtrade & Shipping Ltd was in administration. He noted that Hall Chadwick had been appointed as administrators with the aim to progress to liquidation for all the related entities. A report from Hall Chadwick had previously been provided on 14 May 2021. Mr Van Vlymen also provided a letter by Keleher Lawyers dated 6 April 2021, which had already been provided to the Agency previously.

6. On 21 June 2021, the Agency rejected the hardship claims on the basis that Mr Van Vlymen had not provided the information requested by the Agency on 20 May 2021. On the same day, Mr Van Vlymen requested an internal review on the basis that he was unable to obtain all of the information requested by the Agency as the receivers of his overseas entities would not provide them.

7. On 7 July 2021, an authorised review officer of the Agency (ARO) affirmed the decision to reject the hardship claims on the basis that the applicants had not provided all the information requested by the Agency on 20 May 2021. The ARO concluded that the applicants' eligibility for age pension under the hardship provisions could not be determined as the assets in relation to Mr Van Vlymen's overseas companies were unknown. The applicant’s sought review of this decision. 

8. On 19 August 2021, the Administrative Appeals Tribunal (Social Services & Child Support Division) (SSCSD), affirmed the decisions made by the ARO within the Agency on 7 July 2021 to reject the applicants' claims for age pension under the hardship rules on the basis that Mr Van Vlymen had not provided all the information requested by the Agency on 20 May 2021.

9. The issue for determination in these proceedings is whether Mr Van Vlymen had a reasonable excuse not to provide the information requested in the Notice for the purposes of determining the applicant’s eligibility for age pension under the hardship rules.

   Consideration

10. It appears that Mr Van Vlymen did not comply, entirely, with the requirements of the Notice within 14 days of its receipt. Mr Van Vlymen provided to the Agency, prior to and in response to the Notice, the requested information necessary to report as to the affairs of Pacific Investment Holding Pty Ltd and Orbis Commodities Pty Ltd. He also provided a copy of the judgment and orders in Wong v Van Vlymen [2020] NSWSC 841, and a report of Hall Chadwick, who had been appointed as administrators with the aim to progress to liquidation all the related entities. Mr Van Vlymen did not complete the requested Private Company Module forms for International Comtrade & Shipping Ltd, Lever Solomons Ltd, Russell Islands Plantation Estates Ltd, Pacific Finance Ltd, Cross Pacific Trading Ltd, Pacific Management Services Ltd, and Pacific Investment Ltd.

11. Sean Keleher, solicitor of Keleher Lawyers, provided a letter to the Agency dated 6 April 2021. This was provided by Mr Van Vlymen before the issue of the Notice. He states that he had been engaged by Mr Van Vlymen since mid-2017 to assist with issues surrounding his involvement with assets located in the Solomon Islands. He details that,

    …around mid-July 2017, Mr. Wong with the support of the Receiver arranged for the removal of Mr. Van Vlymen as director from all relevant entities in the Solomons and by doing so, has taken full and total control of these entities. Since that date Mr. Van Vlymen has effectively been frozen out from any information and/or income flowing from these entities.

    I have written on several occasions to the lawyers representing the Receiver, to seek information on the status of affairs, but have been turned down every time.

    Consequently, I can confirm that the information you are requesting from him in points 4-9 cannot be provided for the simple fact that Mr Van Vlymen does not have access to it.

12. Mr Keleher also provided letters from the Australian Securities and Investments Commission confirming that Dutchman Investment Corp Pty Ltd was deregistered on 18 February 2021, and Forward Holdings Pty Ltd was deregistered on 22 March 2021.

13. The letter from Keleher Lawyers confirms that Mr Van Vlymen (and his representative) had been unable at that time to obtain documents relating to International Comtrade & Shipping, Lever Solomons Ltd, Russell Islands Estates Plantation Ltd, Pacific Finance Ltd, Cross Pacific Services Pty Ltd and Pacific Services Ltd.

14. Mr Van Vlymen has since provided additional information, particularly after the applicants’ circumstances changed and they became bankrupt on 29 June 2021. Further information provided Includes information about the deregistration of a number of entities; details of remaining assets; a letter from David Sampson dated 27 July 2021 confirming that the applicants became bankrupt on 29 June 2021 and providing a Certificate of Appointment of Trustee, Proof of Debt form, Notice of Proposed Remuneration Resolution for Approval without Meeting, Report to Creditors, Remuneration Report, Declaration of Independence, and Statement of Creditor Rights; a letter dated 15 April 2021 which relevantly indicated that Mr Van Vlymen would be having a draft balance sheet for Orbis Commodities prepared as at 31 March 2021; a Notice of Extraordinary General Meeting of Shareholders for Lever Solomons Limited on 14 July 2017 in which one of the resolutions proposed was for the removal of Mr Van Vlymen as a director; and Lever Solomons Limited general information. In March 2022, Mr Van Vlymen provided the Agency with the 2019 and 2020 financial statements and tax returns for Orbis Commodities and advised that the '2 or 3 other entities' were subsidiaries of Orbis Commodities, so they did not lodge any separate financial statements and tax returns.

15. The respondent has made much of the failure of Mr Van Vlymen to complete the Private Company Module forms for International Comtrade & Shipping Ltd, Lever Solomons Ltd, Russell Islands Plantation Estates Ltd, Pacific Finance Ltd, Cross Pacific Trading Ltd, Pacific Management Services Ltd, and Pacific Investment Ltd. At hearing, Mr Van Vlymen reiterated that he believed he had provided all of the information he had available to the Agency to assess his assets. He further stated that he believed the required information about the relevant entities was included in the documents already provided and he thought that the Notice and modules were asking for the same information that had already been requested previously. I also understand that Mr Van Vlymen was under considerable stress at the time due to his very difficult financial situation. It was conceded by the respondent that there may had been some cross over of information requested in the Notice with an earlier request for information from the Agency.

16. Most significantly, Mr Van Vlymen reiterated that he did not have access to the information and documents requested in the Notice because the relevant entities were in administration/receivership. Despite numerous requests for information from the overseas entities and administrators, he had been effectively frozen out and had no way of obtaining further information. This is supported by the information provided by Keleher Lawyers.

17. I do note that the applicant’s circumstances changed after the Notice was issued and the rejection of the hardship claims, including the applicant’s declaration of bankruptcy. It also appears that further information has become available since that time. This does not diminish the difficulty Mr Van Vlymen had at the time of the Notice to provide the entirety of the requested information.

18. For these reasons, I find that the decision to reject the applicants' hardship claims on the basis that Mr Van Vlymen had not provided all the information requested by the Agency in the Notice dated 20 May 2021 was incorrect. Mr Van Vlymen did have a reasonable excuse not to provide the entirety of the information requested by the Agency for the purposes of determining his and Mrs Van Vlymen's eligibility for age pension under the hardship rules.

    Decision

19. The decision under review is set aside and remitted for determination of the applicant’s eligibility for age pension under the hardship rules.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 14 November 2023

Date(s) of hearing:	5 October 2023
Applicant(s):	Mr W Van Vlymen
Solicitor for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers