Background
Matthias Michael Bekier was disqualified for six years from managing corporations after the Federal Court found he had breached his directors’ duties while managing The Star Entertainment Group Ltd. The liability findings and disqualification order were under appeal.
Bekier applied under s 206G(1) of the Corporations Act 2001 (Cth) for leave to manage Leliwa Holdings Pty Limited. Leliwa’s sole role was as corporate trustee of a self-managed superannuation fund associated with Bekier; it had no debt or employees, and its shareholders and directors were Bekier and his wife. ASIC, having reviewed the proposed materials and sought further evidence, consented to the relief.
The Court’s Holding
Cheeseman J granted Bekier leave to manage Leliwa, notwithstanding the earlier disqualification. The leave was strictly conditional on Leliwa continuing to act only as trustee of the relevant self-managed superannuation fund, and on the fund’s eligible beneficiaries being confined to Bekier and his immediate family.
The Court accepted that Bekier’s underlying conduct was serious and that findings concerning his lack of insight weighed against relief. But the proposed role was materially different from his former senior executive role, and Leliwa’s confined activities, lack of debt and employees, limited third-party exposure, family support, and ASIC’s informed consent meant the protective purpose of s 206G would not be undermined.
The Court also declared under s 1322(4)(a) that the application was not invalid despite Bekier’s failure to give ASIC the prescribed 21-day notice under s 206G(2). ASIC had received the proposed process and evidence before commencement, had an opportunity to seek changes, and suffered no appreciable prejudice.
Key Takeaways
- A corporate disqualification does not prevent the Court from granting narrowly tailored leave to manage a specified company.
- The protective purpose of the disqualification regime remains central, even where ASIC consents.
- Strict conditions and limited exposure to creditors, employees, the public, and third parties can support leave for a family superannuation trustee.
Why It Matters
The decision illustrates that s 206G relief is fact-specific. Serious prior contraventions will weigh heavily against leave, but may not be decisive where the proposed management role is tightly confined and presents little risk to those the disqualification regime is designed to protect.
It also confirms that a procedural failure to give prescribed notice may be cured where ASIC had actual notice, a meaningful opportunity to assess the application, and no prejudice resulted.