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Friday 27 April 2018

18-116MR AAT affirms decision to cancel registration of NSW liquidator

The Administrative Appeals Tribunal (AAT) has affirmed a decision to cancel the registration of Sydney liquidator, Mr Randall Clinton Joubert.

The AAT found that Mr Joubert's actions as a registered liquidator of several companies were deliberate and dishonest and that he was not a fit and proper person to be a registered liquidator by

  • in three external administrations, failing to disclose a relevant prior relationship with the directors in the Declarations of Relevant Relationships and Indemnities (DIRRIs); and
  • in one external administration, failing to investigate suspicious asset sales to a trust and subsequently failure to mention in the annual report to creditors the circumstances of the sale as known to him.

In addition to the dishonesty findings, the AAT also expressed  findings of serious concerns around several aspects of the matters before the AAT, which included: the curious role a director played in four of the liquidations; failure to follow up demands  to directors to attend the liquidator’s office; in relation to  investigations of sales of assets to related parties, bringing those investigations to a premature end and failing to seek funds on a realistic or commercially attractive basis to conduct investigations; and the use of formulaic templates containing inaccurate information in annual reports.

The AAT further expressed concern that Mr Joubert had failed to notify ASIC of concerns about the companies so that ASIC could consider whether to conduct investigations into possible breaches of the Corporations Act.

ASIC Commissioner John Price said, 'The AAT's findings reinforce the requirement for registered liquidators to act independently and competently to meet both their statutory duties and professional standards.

'A registered liquidator's primary obligation is to creditors who rely on registered liquidators to act lawfully and transparently by disclosing prior relationships, making true declarations and applying monies received in the course of administering companies appropriately. Failure to fulfil these obligations, or to properly investigate and report suspicious dealings in companies to ASIC, is a serious dereliction of  a liquidator’s duties’, Mr Price said.

The cancellation of Mr Joubert's registration as a liquidator takes effect from 19 April 2018.

Download the AAT's decision

Background

Mr Joubert's registration was cancelled in May 2016 by the (former) Companies Auditors and Liquidators Disciplinary Board following an investigation and referral by ASIC (refer: 16-241MR).

At the relevant time, the CALDB was the independent statutory body under the Corporations Act that had the power to cancel or suspend the registration of a liquidator or auditor.

An ASIC investigation found that while conducting five liquidations, four of which had been referred to him by the same accountant, Mr Joubert failed to adequately and properly carry out the duties of a liquidator and that Mr Joubert was no longer a fit and proper person to remain registered as a liquidator

At the time of his conduct, Mr Joubert was the sole practitioner at Joubert Insolvency.

Download the CALDB’s media release, decision and reasons

On 18 May 2016, Mr Joubert applied to the AAT Tribunal for a review of the penalty imposed by CALDB. The AAT stayed CALDB's cancellation decision pending review and subject to conditions that he:

1.   did not accept any appointments that require him to be registered as a liquidator pending the determination of the AAT review; and

2.         notify all stakeholders (directors, shareholders and creditors) of his current external administrations of CALDB's decision to cancel his registration by providing them with access to the CALDB decision and reasons, along with a copy of the AAT orders granting the stay.

Editor's note 1

Mr Joubert did not lodge an appeal to the decision of the AAT.

On 29 June 2018, ASIC obtained an order, by consent, from the Supreme Court of NSW to the effect that Mr Joubert be removed as liquidator from 14 external administration appointments which require Mr Joubert to be a registered liquidator and that replacement liquidators be appointed to 13 external administrations.

The Court ordered that Mr Joubert be replaced as liquidator by:

  1. Mr Peter Krejci of BRI Ferrier in relation to five creditors voluntary liquidations;
  2. Mr Hugh Armenis of Bentleys Corporate Recovery in relation to four creditor voluntary liquidations; and 
  3. Mr David Levi of Levi Consulting in relation to one court appointed liquidation and 3 creditors voluntary liquidations.

The court further ordered that for one creditors voluntary liquidation (Northman Fishing Pty Ltd (in liquidation)) that Mr Joubert be removed as liquidator but the court made no further orders in relation to this company as it was noted that Mr Neville Rubenstein (a registered liquidator) is already acting in the capacity as liquidator of that company.

On 6 July 2018, the Court extended the time for Mr Joubert to deliver books and records to the replacement liquidators to 12 July 2018.

Download a copy of the order of the Supreme Court of New South Wales dated 29 June 2018 here.

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Last updated: 11/07/2018 10:12