FEDERAL COURT OF AUSTRALIA

Minus, in the matter of ABCD Corporation Pty Ltd [2019] FCA 1523

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 206G of the Corporations Act 2001 (Cth) the applicant, Derek Michael Minus, be granted leave to manage ABCD Corporation Pty Ltd ACN 133 338 682, APLUS Pty Ltd ACN 003 190 190, Dispute Resolution Associates Pty Ltd ACN 090 594 451, and Mediation & Arbitration Centre Pty Ltd ACN 608 133 768.

2.    The grant of leave in order 1 is subject to ABCD Corporation Pty Ltd ACN 133 338 682 not engaging in any trading activity in any capacity other than as trustee of the Minasian Superannuation Fund.

3.    No order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1    This is an application made under s 206G(1) of the Corporations Act 2001 (Cth) (the Act) for an order granting leave to the plaintiff, Mr Minus, to manage four named proprietary companies: APLUS Pty Ltd (APLUS), Dispute Resolution Associates Pty Ltd (DRA), ABCD Corporation Pty Ltd (ABCD), and Mediation & Arbitration Centre Pty Ltd (MEDARB).

2    The Australian Securities and Investments Commission (ASIC) intervened in the proceedings and filed submissions on 4 September 2019 setting out reasons why according to it, the plaintiff should only be granted leave to manage one of the specified companies, namely, ABCD, on condition that ABCD not engage in any trading activity in any capacity other than as trustee of the Minasian Superannuation Fund.

3    I have been considerably assisted by the submissions that ASIC has made in support of its position that the grant of leave should be limited to the company known as ABCD. Indeed, but for ASIC’s involvement, I may have been left with a false impression about the status of some of the companies. The reason for this is that the application was supported by an affidavit from Mr Minus dated 22 July 2019 which, amongst other things, under the heading Mediation &Arbitration Centre Pty Ltd, stated that:

This company was established to provide mediation and arbitration services for the resolution of small business disputes in Australia.

4    This part of the affidavit then continued by stating:

As well as generating an income this service provided assistance to the franchising and other small business communities throughout Australia.

5    It was through the involvement of ASIC in this proceeding that it became apparent from Mr Minus’ evidence that the company MEDARB, in fact, was not currently trading. Mr Minus explained in giving evidence that he had been using general language to describe the service that he intended to provide through the company, similar to the service which had been previously supplied by DRA in a contract with the Commonwealth Government to provide services connected with the Office of the Mediation Adviser for the Franchising Code of Conduct, the Office of the Mediation Adviser for the Horticulture Code of Conduct, and the Office of the Dispute Resolution Adviser for the Oil Code of Conduct (positions held by Mr Minus).

6    I make this point about the importance of ASIC’s involvement because Mr Minus has been critical of what he sees as unnecessary delay by ASIC in advising him whether or not it proposed to intervene in the proceedings. The sequence of events shows that Mr Minus was subject to a bankruptcy order and, accordingly, automatic disqualification from being involved in the management of a company pursuant to s 206B(3) of the Act, which provides that:

A person is disqualified from managing corporations if the person is an undischarged bankrupt under the law of Australia, its external territories or another country.

7    On 8 February 2019, as required, Mr Minus notified ASIC of his intention to make an application to this Court to manage a corporation. Mr Minus was notified by ASIC on 22 February 2019 that he was required to provide certain information to ASIC by 8 March 2019 so that it could consider his application. It took Mr Minus some time to get the relevant information together.

8    In the meantime he wrote to his Australian Financial Security Authority (AFSA) Case Manager on 19 March 2019 requesting a response from his trustee in bankruptcy as to whether or not the trustee had any objection to his foreshadowed application for leave to manage the companies. Thereafter, on 25 March 2019, Mr Minus sent another email to his AFSA Case Manager attaching documents and responses to each of the requests she had made in relation to obtaining a letter from the trustee in bankruptcy as to the trustee’s position.

9    On 8 April 2019 his trustee in bankruptcy notified ASIC and Mr Minus that the trustee had been notified by Mr Minus of his application to Court to manage the four corporations. The trustee said:

At the time of writing, the trustee neither objects nor supports the bankrupt’s application.

10    In the event, it took Mr Minus until 17 May 2019 to provide ASIC with the information that ASIC had requested. Thereafter, on 21 June 2019, Mr Minus requested a response from ASIC as to whether or not it would be intervening in the proceedings, on the basis that he proposed to lodge the application in the Federal Court in the following week. On 28 June 2019, ASIC informed Mr Minus that ASIC was still in the process of reviewing the information but aimed to provide a letter setting out its position with respect to Mr Minus’s application for leave to manage corporations shortly.

11    By 26 July 2019, Mr Minus had still not heard from ASIC and he sent another letter notifying ASIC that he had lodged the application with the Federal Court. The application, according to the Court’s records, was filed on 26 July 2019.

12    Mr Minus sent another follow-up request to ASIC on 9 August 2019, noting that a directions hearing had been set down in respect of his application on 22 August 2019. He again asked whether ASIC would provide him with an indication of its position before the date of the directions hearing, and whether it would be appearing.

13    On 20 August 2019, ASIC informed Mr Minus to the effect that it did not oppose him managing ABCD on the basis that ABCD does not engage in any trading activity in any capacity other than as trustee of the Minasian Superannuation Fund, but said in relation to the remainder of the application, that it was ASIC’s position that Mr Minus had not provided sufficient information to the Court to justify the grant of leave.

14    On 29 August 2019, Mr Minus sent to ASIC a copy of the orders of the Court, and sought urgent advice as to ASIC’s position and, in addition, asked what information ASIC considered to be insufficient to allow the Court to grant leave.

15    The matter was initially listed for hearing on 1 October 2019, but the hearing date was moved to today, 5 September 2019 at the request of Mr Minus, in circumstances where there are orders in place by Collier J dated 14 March 2019, which provides (in part) that:

1.    To the extent that Derek Michael Minus is an Applicant to this application for extension of time and leave to appeal, the application is incompetent and is dismissed.

2.    The application for extension of time and leave to appeal otherwise is dismissed.

3.    The Second Applicant and Third Applicant have liberty to apply to reinstate the proceedings, in the event that Derek Michael Minus is granted leave to manage the Second Applicant and Third Applicant under s 206G(1) of the Corporations Act 2001 (Cth) by 13 September 2019.

16    As a result of those orders and my other commitments in the Court, it has been necessary to give these reasons for judgment on an ex tempore basis, so that Mr Minus would have the benefit of my decision before 13 September 2019.

17    I said above that Mr Minus was critical of the fact that he had obtained detailed information from ASIC in the 48 hours before the hearing of his application, including an affidavit in support of ASIC’s submissions of 189 pages. What I should note here is that while I do not consider it relevant one way or another, ASIC would have received notice of this hearing relatively late, given the change of hearing date. Accordingly, I do not think it is reasonable to be critical of ASIC for filing its affidavit and submissions only 48 hours before the hearing. ASIC’s involvement also elicited further information from Mr Minus as, in response, Mr Minus provided a far more detailed affidavit dated 4 September 2019 setting out further information relevant to his application.

18    Accordingly, ASIC’s involvement has caused to be clarified a number of matters of fact which it was important for me to understand. Without ASIC’s involvement, I might have been left with an incorrect impression from some of Mr Minus’s evidence. I will return to this, as ASIC says this is a reason why leave should not be granted to Mr Minus to manage the four companies in question.

19    I have also been assisted by the written submissions which Mr Minus has filed in support of his application.

20    None of the principles which should be applied to this application are in dispute. As described by Barker J in Carey, in the matter of Carey [2011] FCA 235:

31 There are many cases discussing the general principles governing the exercise of the discretion to grant leave. The summation of Lindgren J in Adams v Australian Securities and Investments Commission [2003] FCA 557 at [8], (2003) 46 ACSR 68 at 71, is often referred to in this regard: see for example Duffy, In the matter of Westgate Ports Limited (ACN 096 501 727) [2010] FCA 608, [19], Gordon J. Six points are of primary relevance:

(1)    The applicant bears the onus of establishing that the Court should make an exception to the legislative policy underlying the prohibition;

(2)    That legislative policy is one of protecting the public, not one of punishing the offender;

(3)    Another objective is to deter others from engaging in conduct of the particular kind in question;

(4)    A further objective is the more general one of deterring others from abusing the corporate structure to the disadvantage of investors, shareholders and others dealing with a company;

(5)    The prohibition itself contemplates that there will be hardship to the offender. Therefore hardship to the offender alone is not a persuasive ground for the granting of leave; and

(6)    The Court will have regard to the nature of the offence of which an applicant has been convicted, where relevant, and the nature of his involvement, and the general character of the applicant, including in the intervening period since disqualification. Where the applicant seeks leave to become a director and to take part in the management of particular companies, the Court will consider the structure of those companies, the nature of their businesses and the interests of their shareholders, creditors and employees. The Court will assess any risks to those persons or to public which may appear to be involved in the applicant’s assuming positions on the board or in management.

32 Underlying all of these considerations, is the basic principle that the function of a provision like s 206G is protection of the public from the activities of the dishonest, unscrupulous, untrustworthy, irresponsible or merely incompetent manager: Friend v CAC (1988) 7 ACLC 106 at 115, Powell J; Didovich v Australian Securities and Investments Commission (1998) 29 ACSR 122 at 126.

21    Further, in Re Watts [2011] FCA 1185; (2011) 284 ALR 403, Yates J made the following observation:

14 The overarching principle to be applied in determining whether or not leave should be granted, in circumstances such as the present, was identified by Street J in Re Altim Pty Ltd (1968) 2 NSWR 762 at 764 (Altim) as follows:

The section under which this application is made proceeds upon the basis that a person who is an undischarged bankrupt is prima facie not to be permitted to act as a director or to take part in the management of a company. The court is given jurisdiction to grant leave for such activities to be carried on, but an [applicant for leave] who comes to the court seeking leave must bear the onus of establishing that the general policy of the legislature laid down in this section ought to be made the subject of an exception in his case. It should be borne in mind that the section is not in any sense a punishment of the bankrupt. Nor should a refusal to grant leave under the section be regarded as punitive. The prohibition is entirely protective, and the power of the court to grant leave is to be exercised with this consideration in the forefront.

15 In Re Shneider (1996) 71 FCR 69 at 73; 142 ALR 129 at 133; 22 ACSR 497 at 501 (Schneider), Drummond J observed:

Given that this is the legislative policy behind the section, it is difficult to see how the Court could properly grant a relaxation of the ban unless it knew something of what the [applicant for leave] proposed to do by way of becoming involved in corporate management, that is, unless the [applicant for leave] put before the Court a proposal for him to take part in the management of a specified corporation or corporations.

…

17 Similarly, in Adams v Australian Securities and Investments Commission (2003) 46 ACSR 68; [2003] FCA 557 (Adams) per Lindgren J, in the course of summarising a number of principles that are relevant to the application of s 206G(1), observed (at [8]):

[8] … Where, as here, the [applicant for leave] seeks leave to become a director and to take part in the management of particular companies the court will consider the structure of those companies, the nature of their businesses and the interests of their shareholders creditors and employees. One matter to be considered will be the assessment of any risks to those persons or to the public which may appear to be involved in the [applicant for leave’s] assuming positions on the board or in management...

22    ASIC identified six reasons why it said the applicant should not be granted leave to manage the companies other than ABCD on the condition which has been identified.

23    It said, first, that there was a lack of meaningful detail in Mr Minus’ first affidavit as to the circumstances which led him to becoming bankrupt. I accept the criticism of the first affidavit, but through the course of the hearing today and the additional evidence, those circumstances of Mr Minus becoming bankrupt have become clear.

24    What is apparent is that although Mr Minus, a barrister, was held to be knowingly concerned in all aspects of the conduct of a corporate respondent in using certain domain names for websites in another proceeding for contraventions of ss 18 and 29 of the Australian Consumer Law, being provisions which prohibit false, misleading or deceptive conduct (see Selth v Australasian Barrister Chambers Pty Ltd (No. 3) [2017] FCA 649; [2017] 256 FCR 367), nothing Mr Minus did would attract moral obloquy or involved him in any kind of dishonesty or unethical behaviour. The problem for Mr Minus was that his websites were held to have used without consent trademarks which belonged to the Australian Bar Association and the New South Wales Bar Association. Those proceedings led to costs orders being made against both the respondent company and Mr Minus personally. According to Mr Minus’ further affidavit of 4 September 2019, he was unable to pay the legal costs in circumstances where his strata title chambers were sold for $618,000, but the proceeds of the sale were then held by the receiver to the company and used to pay the receiver’s legal costs of a challenge by ABCD to the receiver selling the premises, allegedly, without proper marketing and for an undervalue. Accordingly, I am not of the view that there remains a lack of meaningful detail before me in relation to the circumstances in which Mr Minus became a bankrupt.

25    ASIC said, secondly, that there was a paucity of evidence concerning the other three companies which Mr Minus sought leave to manage. Again, I agree with this criticism, insofar as it relates to Mr Minus’ first affidavit. However, more information about the companies has been provided through Mr Minus’ second affidavit and the oral evidence he has given today.

26    As set out in Mr Minus’ submissions, what emerges from the evidence is that the companies have been in existence for many years: in the case of APLUS since 1986, a period of 33 years; in the case of DRA, since 1999, a period of 20 years; and in the case of MEDARB, since 2008, a period of 11 years. Mr Minus described the companies as involving a small shareholding, comprising himself (now his trustee in bankruptcy) and his wife who supports Mr Minus in his application for leave. The letter from Mr Minus’ wife states that:

I am writing in support of my husband’s application to ASIC to act as a director of A Plus, ABCD, DRA and Mediation and Arbitration Centre.

These companies earn income for our family, and I rely on my husband’s specialist knowledge about the areas in which they operate, and the services they offer, for the ongoing management and governance of these organisations.

27    I accept the submission which Mr Minus has made, that he has demonstrated over a very long period that he is a person who has properly discharged his obligations and responsibilities as a director. I refer also to the fact that he has served as a director on other private companies, including the Chartered Institute of Arbitrators (Australia) Limited and the Australian Ju-Jitsu Federation Incorporated.

28    While I agree that there was the potential for some confusion in Mr Minus’ affidavits about what the companies did, I am of the view that it is now clear that the only company which is currently trading is APLUS. DRA was trading until the end of a contract which it had with the Commonwealth Government, relating to a Parliamentary Inquiry. This was a contract to provide dispute resolution services under various codes of conduct. Mr Minus wishes MEDARB to be able to provide similar services.

29    Mr Minus has referred to the Parliamentary Joint Committee on Corporations and Financial Services Fairness in Franchising Report dated March 2019, which refers to submissions that were made to the Committee in his capacity as the Franchising Code Mediation Adviser and the Oil Code Dispute Resolution Adviser. As he sees it, and as he put in his submissions, what he is seeking to do is to be able to continue the role he has played successfully as a dispute resolver and mediator appointed by Ministers in the Federal Government, using a commercially appropriate business model which generated significant revenue of over $250,000 for DRA. According to Mr Minus, and as I accept, the services DRA provided involved a demonstrable benefit to small businesses and family enterprises seeking access to justice.

30    ASIC’s third proposition is that Mr Minus had not put forward any proposal for any kind of conditions that ensure he would be the subject of supervision. The only submission that Mr Minus has made in this regard is that his trustee in bankruptcy holds the shares in APLUS, and that the two other companies, DRA and MEDARB, are wholly owned subsidiaries of APLUS. Accordingly, he will be subject to the control of his trustee in bankruptcy. ASIC made the submission, which must be accepted, that this will be the same for every undischarged bankrupt who is seeking leave to be involved in the management of a company. While I accept this, what I also note in the present case is that Mr Minus’ trustee in bankruptcy has specifically said that there is no objection to Mr Minus performing this role.

31    In the course of making submissions in relation to this issue, ASIC correctly noted that the circumstances of this case are different from those considered in In the matter of Endeavour Energy Network Management Pty Ltd [2017] NSWSC 1825, Carey, and Re Application of Chapman [2006] NSWSC 99; [2006] 228 ALR 586.

32    As ASIC said, in Endeavour Energy, the evidence demonstrated that the position the plaintiff proposed to take up was within a structured managed environment, where he would report to the CEO and the board, and be only one of a number of members of the corporation’s senior management team.

33    In Carey, the charitable corporation which the applicant sought leave to manage as a director had six elected board members plus three additional board positions to which persons with specific skills were appointed. The corporation also had a finance and audit sub-committee which oversaw its financial management, and it engaged an external accountant to provide monthly reports.

34    In Chapman, leave to manage the specified corporation was granted on conditions that at least one director, in addition to the plaintiff, be ordinarily resident in Australia, and that the plaintiff not be the sole signatory of any of the corporation’s bank accounts.

35    Consideration of these cases led ASIC to submit that the Court could not be satisfied that the protection of the public, being the legislative policy behind s 206G, could be achieved in the present case.

36    I have given considerable weight to this particular submission, which seems to me to go to the heart of the matter. However, I have come to the view that, on balance, I can be satisfied that the objective of protection of the public can be achieved. I have evidence that Mr Minus continues to practise as a barrister. Accordingly, he must continue to be accepted to be a fit and proper person for the performance of that important role in society. I also have a copy of Mr Minus’ curriculum vitae, which shows that Mr Minus has been a Chartered Arbitrator of the Chartered Institute of Arbitrators since 2002, a Mediator Fellow of the Chartered Institute of Arbitrators since 2008, a Nationally Accredited Mediator, qualified since 2008 and a Family Dispute Resolution Practitioner with Relationships Australia, qualified since 2010. He is a former president of the Chartered Institute of Arbitrators. He was a member of the National Committee of the Chartered Institute of Arbitrators from 1998 to 2010. He is also a fellow of both the Chartered Institute of Arbitrators by mediation, and the Chartered Institute of Arbitrators by Arbitration. He was a member of the New South Wales Bar Association between 1992 and 2006 and a member of the Victorian Bar Association from 2005 to 2017. He was admitted to practice in the New South Wales Supreme Court in 1991, and in the High Court and Federal Court in 1992. Further, as his evidence sets out, from 1 December 2016 to 30 November 2018 he was appointed as the Commonwealth Government’s Franchising Mediation Adviser for the Franchising Code of Conduct, Horticulture Mediation Adviser for the Horticulture Code of Conduct, and Oil Code Dispute Resolution Adviser and Expert Determiner for the Oil Code. In this role, he was responsible for appointing mediators to conduct the dispute resolution processes under the Franchising Code of Conduct, the Horticulture Code of Conduct and the Oil Code, which are prescribed codes under the Competition and Consumer Act 2010 (Cth).

37    I have given weight to these matters and have taken into account the significant public service which Mr Minus has performed through these roles. I also take into account that, as he has said, the companies involved small shareholdings and a limited field of endeavour, all of which are connected with or integrated with his practice as a barrister, mediator and arbitrator.

38    It is in these particular circumstances that I have reached the view that Mr Minus has discharged the onus of establishing that the Court should make an exception to the legislative policy of protection of the public which underlies the prohibition. I have also given considerable weight to the fact that there is no evidence which would suggest that Mr Minus has ever been involved in abusing a corporate structure to the disadvantage of investors, shareholders, and other dealings with a company. He has been made bankrupt due to outstanding orders for legal costs, but as I have said, nothing in those circumstances suggests to me that he has been morally culpable in his conduct.

39    The fourth reason which ASIC gave in support of its position was that Mr Minus had given evidence in his first affidavit that the companies were “still solvent and trading”, in circumstances where it has become apparent through the more detailed evidence given today, that only one of the companies, in fact, is trading. ASIC submitted that the fact that Mr Minus’ affidavits would have left the Court with a misleading impression is a reason why he ought not to be granted the dispensation which he seeks, as it would not engender confidence in his capacity to manage the companies in a way which would ensure protection of the public.

40    Again, I have given careful consideration to this submission. It is fair to say that Mr Minus’ affidavits do use loose language. If matters had stood as set out in the first affidavit dated 22 July 2019, I would have been left with an incorrect impression. I also accept that the impression was corrected only through cross-examination by ASIC. However, having had the benefit of seeing Mr Minus giving evidence and having heard his submissions today, I am not persuaded that Mr Minus was involved in any deliberate attempt to mislead the Court. I am convinced that what has occurred is nothing more than the use of loose language in his description of the companies’ activities. In these circumstances, this factor does not weigh materially against him in respect of the application.

41    ASIC, as its fifth matter, said there were a number of matters not mentioned in the plaintiff’s affidavit. This part of ASIC’s submissions was a response to Mr Minus’ first affidavit in which he said that neither in the decision of Greenwood J in the Federal Court, nor in the decision of Street J to order the sequestration of his estate, were any criticisms made of him personally. Further, that he was not found to have acted dishonestly or corruptly and was not found guilty of any misconduct or criticised in relation to any action that was antithetical or otherwise discreditable to his practice as a barrister or a company director.

42    ASIC pointed out that Greenwood J had found that Mr Minus was “knowingly concerned” in “all aspects” of the conduct of the corporate respondent which constituted contraventions of ss 18 and 29 of the Australian Consumer Law, being provisions which prohibit false, misleading or deceptive conduct. This may be accepted, but the relevant aspect is, as Mr Minus said, that he was not found in any way to have acted dishonestly or in a manner that was antithetical or otherwise discreditable to his practice as a barrister or as a company director. ASIC also pointed out that in Minus v Selth (No. 2) [2017] FCA 1233, Logan J was, in fact, critical of Mr Minus, saying at [27], that Mr Minus’ failure to provide an up to date address for service manifested, “…a failure to take personal responsibility for the consequences of one’s actions or, more accurately, inactions”, and that it was an “odd statement” for Mr Minus to say that the Federal Court had not provided any alternate means of notification such as email such that he could be properly alerted to the need to provide a response within the required timeframe. Further, at [45] Logan J said that it seemed to him that Mr Minus’ affidavit in that matter “manifests an absence of candour”.

43    It is not possible to know all of the circumstances leading to the judgment in Minus v Selth (No 2) and the comments of Logan J. It is sufficient to say that given this I do not take the criticisms of Mr Minus in that case as weighing materially against all of the other circumstances to which I have referred. As I have said, what is before me is a specific proposal for Mr Minus to take part in the management of specified corporations, at least one of which has played an important role in relation to the provision of services to the Commonwealth Government in respect of aspects of the regulation of franchising in this country. In these circumstances, given the nature of the companies and the evidence which is before me, I do not consider that the comments which Logan J made outweigh the other evidence to which I have referred.

44    The sixth point that ASIC made is that Mr Minus’ evidence was essentially silent as to any hardship that may be suffered if he is not permitted to manage APLUS, DRA and MEDARB. Further, ASIC noted that given that Mr Minus is a barrister it cannot be assumed he needs a corporate vehicle in order to earn income and, accordingly, if there was a particular need for Mr Minus to be able to manage a company in order to earn income that need should be clearly explained in Mr Minus’ evidence, but it is not.

45    What has emerged through Mr Minus’ more recent evidence and his submissions today is that it is true he is a barrister, mediator and arbitrator and can earn income as such in his capacity as a sole trader. What he has said, however, and what the evidence supports, is that he has built up these other companies, particularly DRA as a successful service provider in circumstances where the framework which he has used, as he put it, requires someone familiar with the day to day management of the companies to continue in that role so that those companies will have an opportunity to retain and enhance their value in providing the kind of services which they have previously provided. There is also evidence from Mr Minus’ wife that the companies earn income for the family and that she relies on his specialist knowledge about the areas in which the companies operate and the services they offer for the ongoing management and government of these organisations. Further, there is evidence that DRA has lodged a notice of dispute with the Commonwealth Government in relation to the contract which it had for the provision of dispute resolution services. In that claim an alleged loss of income of between $330,000 and $550,000 over the period of the contract was to be mediated by Lindgren J. However, there is evidence in a letter from the solicitors for the relevant Commonwealth department that noted Mr Minus had been made bankrupt and raised questions about the ongoing management of DRA. According to the letter from the solicitors for the Commonwealth department, while the management of DRA remained unclear the department considered that it was not feasible for the mediation then scheduled for 6 February 2019 to proceed and, accordingly, the department would not be in the position to attend the mediation on that date. It is apparent, therefore, that Mr Minus’ inability to continue to manage the companies has prevented the progression of his dispute with the Commonwealth.

46    While it is true that the statutory prohibition itself contemplates that there will be hardship to the offender and, therefore, hardship alone is not a persuasive ground for the granting of leave, I consider that the other matters to which I have referred weigh in favour of granting Mr Minus the dispensation. As I have said, his bankruptcy did not arise from mismanagement of any corporation. He has had longstanding involvement in the management of these corporations without any apparent issue arising as to his management. His bankruptcy arose from an inability to pay legal costs arising from a trademarks dispute with the Australian Bar Association and the New South Wales Bar Association. There is no suggestion that in the intervening period since disqualification Mr Minus has done anything which would bring him into any form of disrepute. The structure of the companies and the nature of their business, which are small family companies offering specialised services, apparently successfully in the case of DRA at the highest level, makes me satisfied that there is no real risk to persons who would engage with the companies as managed by Mr Minus, particularly taking into account that, as he said, the shares in the company are now under the control of his trustee in bankruptcy and, accordingly, ultimately his activities will be subject to the supervision of his trustee in bankruptcy.

47    In summary, I accept that given the applicant’s history as a company director for the past 30 years, given the nature of the companies which have limited trading, are interconnected, have a small shareholding and a small management structure with family involvement and few customers and suppliers, and no history of causing loss to the public or unscrupulous activities from which the public needs to be protected, I should exercise my discretion in favour of Mr Minus to grant the leave that he seeks. I am also satisfied that the condition which ASIC seeks to be imposed upon Mr Minus’ management of ABCD should be imposed.

Associate:

Dated:    5 September 2019