ASIC has disqualified Jun Toyoda of Potts Point, NSW, from managing corporations for three years due to his involvement in the failure of six companies.

Between November 2009 and April 2021 Mr Toyoda was the director of six companies which entered liquidation between October 2018 and April 2021:

• Basic Concept Pty Ltd (ACN 140 555 184) (BasCon),
• Asrapport Australia Pty Ltd (ACN 603 539 813) (Asrapport),
• Asrapport Restaurant Systems Pty Ltd (ACN 167 629 432) (Asrest),
• Southern Cross 339 Pty Ltd (ACN 626 924 561) (Souross),
• About Life Foodservice Pty Ltd (ACN 629 670 819) (Foodservice), and
• Globridge Australia Pty Ltd (ACN 153 838 110) (Globridge).

ASIC also relied upon Mr Toyoda’s involvement in NBI Australia Pty Ltd (ACN 603 343 648) (NBI) which entered liquidation on 17 October 2018.

The Companies were involved in food/hospitality industry in, Elizabeth Bay, Crows Nest, Cremorne and Chatswood in New South Wales.

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

• properly use his position when businesses of indebted BasCon were sold to new companies, thereby gaining an advantage for business purchasers and/or causing detriment to BasCon by engaging in illegal phoenix activity,
• properly use his position to gain an advantage for himself and/or caused detriment to NBI when NBI’s business was sold to another company, without NBI receiving full payment, and Mr Toyoda failied to repay his personal debt to NBI,
• ensure BasCon, Asrapport, Souross, Foodservice and NBI complied with their statutory lodgement obligations to the Australian Taxation Office (ATO),
• ensure reasonable steps were taken to prevent BasCon and Asrapport from continuing to trade and incur debts when they appeared to be insolvent or in significant financial distress, and
• ensure BasCon and Asrapport complied with the obligation to keep financial records.

At the time of ASIC’s decision, the six companies owed a combined total of $6,189,299 to unsecured creditors, including approximately $2,213,940 owed to the ATO. In addition, NBI owed approximately $81,969 to the ATO.

Section 206F allows a disqualification period up to five years. Mr Toyoda’s misconduct, particularly the misuse of his position as a director of BasCon and NBI and his engagement in illegal phoenix activity (as a director of BasCon), are at the more serious end. However, consideration was taken into account of Mr Toyoda’s cooperation with ASIC, his admissions and his remorse.

In disqualifying Mr Toyoda, ASIC relied on supplementary reports lodged by BasCon’s liquidator, Mr Jason Tang of Cor Cordis (NSW) and Asrapport’s liquidator, Mr Jamieson Louttit of Jamieson Loutit and Associates (NSW).

ASIC assisted Mr Tang and Mr Louttit to prepare his supplementary report by granting an application for funding from the Assetless Administration Fund.

Mr Toyoda is disqualified from managing corporations until 19 July 2026.

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

Background

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.