Mr Stuart Ariff, an official liquidator, from Newcastle, New South Wales, was today found to be unfit to be an official or registered liquidator and prohibited from holding the office of liquidator, provisional liquidator, voluntary administrator, administrator of a deed of company arrangement or controller, for life.

The orders were made by Justice Bergin, on the application of the Australian Securities and Investments Commission (ASIC), which had commenced proceedings in the Supreme Court of New South Wales against Mr Stuart Ariff, alleging Mr Ariff had not faithfully performed his duties in respect of sixteen (16) companies listed in the schedule below which included the Carlovers group of companies.

ASIC brought proceedings pursuant to s.447E and s.536 of the Corporations Act and obtained the orders which it sought, namely:

• banning Mr Ariff as an official and registered liquidator for life.

• acceptance by him that each of the 83 allegations of misconduct were proved against him.

• declarations that in relation to each of the 16 companies Mr Ariff had not faithfully performed his duties as a liquidator and that he had prejudiced the interests of creditors and members.

• order that he pay compensation totalling $4.9m to the relevant companies in the schedule.

• his immediate removal from acting as a liquidator or administrator of all companies to which he was still appointed.

Commissioner of ASIC, Mr Michael Dwyer, strongly endorsed the findings and orders made by the Court, noting that:

‘The decision sends a clear message to liquidators (who are officers of the court) about what is expected when liquidators charge for professional fees and outlays. Professional costs must be properly approved by creditors and outlays must be appropriate and reasonable. ASIC will continue to act to protect creditors and shareholders of companies from the type of conduct the Court has dealt with against Mr Ariff.’

Schedule

• Singleton Earthmoving Pty Ltd (in liquidation);

• Independent Powder Coating Pty Ltd (in liquidation);

• ACN 109 876 137 Pty Ltd (deregistered);

• H.R. Cook Investments Pty Ltd (in liquidation);

• Carlovers Carwash Limited;

• Carlovers (Maroochydore) Pty Ltd;

• Carlovers Carwash (Aust) Pty Ltd;

• The Carwash Kings Pty Ltd;

• Zelous Creations Pty Ltd;

• Austen Entertainment Ltd (deregistered);

• Sid Fogg & Sons Pty Ltd;

• Visidet Pty Ltd;

• MDC Entertainment Pty Ltd;

• Bulla Tip & Quarry Pty Ltd (in liquidation); and

• Bulla Tip & Quarry Operations Pty Ltd (in liquidation)

• P&J Smith Engineering Pty Ltd.

Further background

Pursuant to ss 447E and 536 of the Corporations Act, ASIC, and other parties, may make application to court in circumstances where it appears to the applicant that the insolvency practitioner may not have been faithfully performing his or her duties, or where the practitioner’s conduct may be prejudicial to the interests of creditors or members of a company. Under Section 536, the Court, if it considers appropriate, may conduct an inquiry into the matter, and conduct an examination of the liquidator. The Court may make such orders it considers appropriate and just, including compensation.

Editor's note:

On 24 August 2009 Justice Bergin made orders, by consent, that Stuart Ariff be restrained from leaving Australia until 30 November 2009. This followed an application made by ASIC under section 1323 of the Corporations Act 2001 in respect of an ongoing investigation concerning Mr Ariff.