Two former directors of collapsed retail over-the-counter derivatives provider Berndale Capital Securities Pty Ltd have been charged with dishonesty offences, including misusing over $1 million in company funds.

ASIC alleges that Stavro D’Amore and Daniel Kirby each unlawfully transferred Berndale company funds to benefit themselves and other associates and entities. Mr D'Amore is alleged to have used some Berndale company money to fund deposits for residential property purchases.

Mr D'Amore and Mr Kirby are also alleged to have made a false statement or submitted false or misleading documents to ASIC and an auditor of Berndale about overseas bank accounts containing Berndale funds. Mr Kirby is also alleged to have fabricated evidence related to Berndale funds in overseas bank accounts in Federal Court proceedings.

Berndale’s Australian financial services licence required it to maintain a minimum level of net tangible assets and lodge audited financial reports. ASIC alleges the relevant overseas funds and accounts either did not exist or were grossly inaccurate.

Mr D’Amore and Mr Kirby are next due to appear before the Melbourne Magistrates’ Court on 25 August 2023.

The matter is being prosecuted by the Commonwealth Director of Public Prosecutions following a referral by ASIC.

Background

Mr D’Amore was charged with:

• five offences of dishonestly using his position as a director, contrary to s184(2) of the Corporations Act
• five offences of dishonest conduct in the course of carrying on a financial services business, contrary to s1041G of the Corporations Act
• four offences of making a false and misleading statement in a document submitted to ASIC, contrary to s1308(2) of the Corporations Act
• one offence of giving false or misleading information to an auditor, contrary to s1309(1) of the Corporations Act, and
• one offence of making a false and misleading statement in an ASIC examination, contrary to s64 of the ASIC Act.

Mr Kirby was charged with:

• two offences of dishonest conduct in course of carrying on a financial services business, contrary to s1041G of the Corporations Act
• one offence of dishonestly using his position as a director, contrary to s184(2) of the Corporations Act
• one offence of giving false or misleading information to an auditor, contrary to s1309(1) of the Corporations Act; and        
• one offence of using fabricated evidence, contrary to s36(1) of the Crimes Act (Cth).

In 2018, ASIC banned 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. The Federal Court appointed Cor Cordis joint and several liquidators of all three companies and the liquidation of Berndale remains ongoing (19-100MR).

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

Editor's note 1:

The matter has been adjourned to 10 October 2023 for committal mention in the Victorian Magistrates Court.

Editor's note 2:

The matter has been adjourned to 17 November 2023 for committal mention.

Editor's note 3: 

The matter has been adjourned to 7 December 2023 for committal mention. 

Editor's note 4: 

The matter has been listed for a committal hearing in the Melbourne Magistrates’ Court, to commence on 16 September 2024, for four days.

Editor’s note 5:

On 16 September 2024, Mr Daniel Kirby and Mr Stavro D’Amore appeared at the Melbourne Magistrates’ Court for committal hearing.

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

Mr D’Amore has pleaded not guilty on all charges. 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 (24-204MR).

Editor's note 6:

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 on 10 February 2025.