Liquidator awaiting disciplinary outcome

BPS Recovery’s Mitchell Ball.

Liquidator Mitchell Ball has some tense weeks ahead following his referral to a schedule 2 disciplinary Committee by ASIC.

According to a Form 986 attached to his entry on ASIC’s Professional Registers list, the BPS Recovery partner was issued with the referral in March this year.

The Form 986 refers to alleged misconduct outlined in a show cause notice under three sections of the Corporations Act 2001 – Schedule 2:

“s40-40(1)(f) the liquidator has contravened a provision of this Act,

“s40-40(1)(l) the liquidator has failed to carry out adequately and properly (whether in Australia or in an external Territory or in a foreign country):

“(i) the duties of a liquidator;

“(m) the liquidator is not a fit and proper person;”

In response to INO’s enquiries Ball issued a short statement late yesterday.

“A schedule 2 committee has been formed at the request of ASIC,” Ball said.
“I am fully cooperating with ASIC. As far as I am aware the committee has not yet made its decision and is considering a response provided by me to ASIC.

“I propose to make further representations at the meeting of the committee,” Ball said.

He declined to elaborate on the conduct that’s the subject of the show cause notice but INO is aware of a rash of late document lodgements by Ball back in 2015.

We do not say this is the reason for the referral. We offer it only as a possible explanation.

We also asked ASIC whether there was any time limit on the regulator to finalise any disciplinary proceedings it initiates against a registered liquidator.

The response was that under Section 50-90 of the Insolvency Practice Rules: “If a matter is referred to a Part 2 committee under section 40‑50 of the Insolvency Practice Schedule (Corporations), the committee must use its best endeavours to decide the matter within 60 days after the matter is referred to it.”

The referral is dated March 18 so Ball has had this hanging over him for longer than he should have.

If that scenario sounds familiar it’s probably because it was only last month that liquidator David Hurst was exonerated of any breach of conduct in the Crystal Car Wash Cafe matters by NSW Supreme Court judge Paul Brereton.

That ruling – which included stinging criticisms of ASIC and the labelling of its pursuit of Hurst as “vexatious” came more than two years after ASIC commenced its action to have Hurst and former liquidator Andrew Wily banned.

Wily relinquished his registration during the proceedings but Hurst, who has a large family, has had to continue to try and practice while the disciplinary proceedings were afoot. That’s no easy feat.

Coincidentally, he is now at Ball’s practice, BPS Recovery.

For fairness, it should be noted that Justice Brereton was extremely late in bringing down his judgment on ASIC’s application, in part because he was engaged to undertake an inquiry for the Federal Government into allegations of war crimes by Australian special forces in Afghanistan. Please take a moment to support INO’s continued chronicling of the insolvency profession.

Further reading:

ASIC Asks Court To Ban Wily And Hurst

Judge Labels ASIC Vexatious As Inquiry Bid Quashed

2 Comments on "Liquidator awaiting disciplinary outcome"

  1. Terry Smith | 21 June 2019 at 9:48 am | Reply

    I think it is great how everyone gets a pass on having competing priorities that cause delay except for the only person trying to make a living NOT on the public tit! Heaven forbid if an IP gets caught up doing work that might result in a return to creditors (and keep people employed) but is late on lodging a pointless form that no one reads and is as useful as a chocolate kettle.

  2. Jim Johnson | 21 June 2019 at 2:53 pm | Reply

    There is by the use of the publicity a lack of transparency which calls into question the conduct of the insolvency practitioner – who ought not be put in a position of having to respond to issues which are not public and inferentially called into question. That of course occurred in respect of both Wily and Hurst – Hurst was totally exonerated and the regulator criticised. It remains a huge problem that these issues are delayed and create a distraction at time when the market leaves very little ability for IP’s to make a living

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