Following publication of lurid details involving sham arrangements, straw directors and shadowy puppet masters, iNO asked the liquidator responsible for uncovering the imbroglio if he’d reported his findings to ASIC.
As it turns out, he had. IRT Advisory’s Andrew Poulter lodged a section 533(1) report with ASIC in January 2018 in respect of what smelled like the liquidation of convenience of frozen pizza maker Amici Food Manufacturer Pty Ltd.
“I have formed the view that these reasons should be provided to ASIC for investigation of the circumstances in which Mr Moss, Mr Dunner and Mr Pastras apparently decided to liquidate Amici.” Justice Shaun McElwaine.
That report included a recommendation that ASIC investigate further but according to Poulter, “ASIC determined not to commence an investigation but indicated that the report could be used if ASIC decided to take action against the director(s) under s.206F.”
Last week, a judge of the Federal Court of Australia also determined that ASIC should investigate the conduct that Poulter identified.
The public can now only wonder and wait to see if a senior judicial offer can succeed in launching a rocket under the regulator where a liquidator couldn’t.
In Aquisite Pty Ltd v Moss [2023] FCA 410 Justice Shaun McElwaine made a range of orders including that “The Registrar of the Court is to provide a copy of these reasons to ASIC for consideration whether there should be an investigation of the circumstances which led to the liquidation of Amici Food Manufacturer Pty Ltd (in liq).”
On the face of it ASIC should look closely at any pre-appointment corporate structuring that involves former liquidator and recently discharged bankrupt Andrew Leonard Dunner, 72 of Camberwell, Victoria.
In 2013 Dunner was ordered to repay $600,000 and stripped of his liquidator’s ticket for five years following the court’s decision in Australian Securities and Investments Commission v Dunner [2013] FCA 872.
Then in 2016 Dunner emerged as a figure off interest when agents from the multi-agency Phoenix Taskforce raided the Melbourne offices of A&S Services Pty Ltd as part of a major investigation into the use of sham directors and the misuse of the liquidation process to avoid tax.
As Justice McIlwaine’s judgment reveals, Dunner referred the Amici job to Poulter.
In regards to the alleged use of sham arrangements and dummy directors being manipulated by their shadowy controllers, support for Poulter’s original suspicions was found after Aquisite funded him to conduct public examinations in 2019.
In exchange for the funding Poulter agreed to assign any claims identified to Aquisite for $50 and a cut of any recoveries.
In his judgement Justice McElwaine found that Aquisite had succeeded partially in respect of its claims but seemed equally concerned that ASIC investigate the conduct Poulter uncovered.
“These facts raise a serious concern about whether Mr Pastras was inserted as a dummy director as part of a dishonest scheme,” the judge said.
“That issue is not before me for decision. It is a matter that in my view should be referred to the Australian Securities and Investments Commission,” he said. We live in hope.
Further reading:
How unusual for ASIC not to investigate.
As usual ASIC do nothing , put it off, true procrastination professionals!!
I am sure insolvency many practitioners advise ASIC and not the Police of frauds so they do not have to spend unremunerated time writing affidavits and court time.
I also doubt if police would have sufficient manpower to handle the numerous complaints that ASIC fail to act on.