Former Berndale director Daniel Kirby appeared before the Melbourne Magistrates’ Court on 16 September 2024 to plead guilty to the following offences:

• one count of dishonest conduct in relation to a financial service,
• one count of dishonest use of his position as a director, and
• one count of providing false or misleading information to an auditor.

Mr Kirby was previously a director of collapsed retail over-the-counter derivatives provider Berndale Capital Securities Pty Ltd. He entered the guilty plea on the first day of a four-day committal hearing.

On 22 November 2018, ASIC cancelled Berndale’s financial services licence due to multiple concerns including failure to comply with various reporting obligations, failure to comply with statutory notices and that its representative was not adequately trained or competent to provide financial services.

Prior to, and immediately following this licence cancellation, Mr Kirby illegally transferred Berndale company funds to benefit himself and other associates and entities. Several of these transfers occurred mere hours after Berndale’s licence had been cancelled.

Mr Kirby also submitted false or misleading documents to Berndale’s auditor about the amount of funds available in overseas Berndale bank accounts.

Berndale’s Australian financial services licence required it to maintain a minimum level of net tangible assets of at least the greater of $1million or 10% of its average revenue; and lodge audited financial reports. The relevant overseas funds and accounts either did not exist or were grossly inaccurate.

Mr Kirby was committed to the Federal Court of Australia for sentence, which will occur on a date to be fixed. Mr Kirby’s first appearance before that Court will be on 30 September 2024.

Background

Mr Kirby was charged on 2 June 2023, at the same time as former Berndale director Stavro D’Amore. Mr D’Amore has pleaded not guilty on all charges. On 16 September 2024, Mr D’Amore was committed to stand trial in the criminal jurisdiction of the Federal Court of Australia on a date to be fixed. The matter is listed for directions on 30 September 2024.

As a result of ASIC’s investigation:

• In 2018, ASIC banned co-accused and former Berndale director, Mr D’Amore from providing financial services for six years and cancelled Berndale’s Australian financial services licence (18-363MR).
• In 2019, ASIC successfully sought to have Berndale and two associated companies, Berndale Capital Securities Management Pty Ltd and Algoplus Pty Ltd, wound up. Rachel Burdett-Baker and Bruno Secatore of Cor Cordis, Melbourne, were appointed to act as joint and several liquidators of all three companies. The liquidation of Berndale remains ongoing (19-100MR).
• In 2023, Mr D’Amore and Mr Kirby were charged with dishonesty offences, including misusing over $1 million in company funds (23-143MR).

Following legislative change earlier this year, the Federal Court of Australia can now hear an expanded range of corporate criminal matters, including indictable offences against the Corporations Act 2001 and the Australian Securities and Investments Commission Act. This will be the first ASIC matter to proceed in the Federal Court under these changes. The CDPP is conducting the prosecution.

Creditors and/or clients of the Berndale companies can contact the liquidators via the following details:

Contact details:
Address Cor Cordis Level 29, 360 Collins Street MELBOURNE VIC 3000
Contact person Catherine Torres
Email: ctorres@corcordis.com.au
Phone: (03) 8320 5646

Previous media releases:

• 19-100MR ASIC succeeds in application to appoint a receiver to former OTC derivatives issuer Berndale Capital Securities Pty Ltd
• 23-143MR Former Berndale directors charged over dishonest conduct, misuse of company funds

Editor’s Note

The first case management hearing for the matter was heard by Justice Abraham in the Federal Court of Australia on 30 September 2024. The matter is now listed for further case management at 9am on 10 February 2025.