ASIC has disqualified John Vaughan Markham of Eastwood, NSW, from managing corporations for three and a half years due to his involvement in the failure of three companies.

Between March 1991 and November 2020 Mr Markham was the director of three companies which entered liquidation between November 2019 and February 2021:

• Active Towing Sydney Pty Ltd (ACN 003 705 539) (Active Towing Sydney),
• Ryde & District Smash Repairs Pty Ltd (ACN 003 453 012) (Ryde & District Smash Repairs), and
• Active Towing Enterprises Pty Ltd (ACN 079 145 887) (Active Towing Enterprises).

Active Towing Sydney was involved in towing and motor vehicle repair services. Ryde & District Smash Repairs provided labour hire services predominately to Active Towing Enterprises. Ryde & District Smash Repairs provided towing services to another entity.

ASIC found that Mr Markham did not meet his obligations as a director when he failed to:

• ensure the companies comply with their ATO statutory lodgement obligations,
• properly use his position by entering into a sale agreement that deprived Active Towing Sydney of its only income generating assets, which included allowing for the proceeds of the sale agreement, and other funds, to be withdrawn and transferred out of the company's bank accounts,
• act in good faith of Active Towing Sydney by circumventing employment obligations,
• ensure the companies complied with the obligation to keep financial records, and
• allowed Ryde & District Smash Repairs to incur debts when there were reasonable grounds to suspect the company was insolvent.

At the time of ASIC’s decision, the three companies owed a combined total of $1,833,747 to unsecured creditors, including approximately $1,472,006 owed to ATO.

In disqualifying Mr Markham, ASIC relied on supplementary reports lodged by Active Towing Sydney’s liquidator, Mr Richard Albarran of Hall Chadwick (NSW) and Ryde & District Smash Repairs’ liquidator, Mr David Ross then of Hall Chadwick (VIC).

ASIC assisted Mr Albarran to prepare his supplementary report by approving an application for funding from the Assetless Administration Fund.

Mr Markham is disqualified from managing corporations until 25 November 2026.

Mr Markham has the right to seek a review of ASIC’s decision by the Administrative Appeals Tribunal.

Background

On 2 December 2021, the Federal Circuit and Family Court found that Active Towing Sydney had breached the Fair Work Act 2009 in deducting amounts from the wages of one of its employees over a three-year period from 2015 to 2018, and upon termination of that employee, had failed to pay the employee his accrued annual leave (as charge back of expenses incurred by Active Towing Sydney). The expenses relate to matters such as parking fines and damage to tow-truck vehicles. the Court awarded the employee compensation of $26,955.52 plus interest of $5,819.16.

Section 206F of the Corporations Act allows ASIC to disqualify a person from managing corporations for a maximum period of five years if, within a seven-year period, the person was an officer of two or more companies, and those companies were wound up and a liquidator provides a report to ASIC about each of the company’s inability to pay its debts.

ASIC maintains a banned and disqualified persons register that provides information about people who have been disqualified from:

• involvement in the management of a corporation,
• auditing self-managed superannuation funds (SMSFs), or
• practising in the financial services or credit industry.