Summary
Imran Kamal sought judicial review of the decision by the Restructuring Insolvency and Turnaround Association of New Zealand Incorporated (RITANZ) to decline his application for membership because he did not meet the "good character" requirement.
Background
Mr Kamal ultimately wanted to apply to the New Zealand Institute of Chartered Accountants (NZICA) for a licence to practice as an insolvency practitioner, which is now under the Insolvency Practitioners Regulation Act 2019. Registration with RITANZ was meant to be the first step towards registration.
The Insolvency Act was introduced to lift the level of professionalism of practitioners. In order to be a licensed insolvency practitioner, NZICA must be satisfied that the applicant meets the legislative criteria, including that they are fit and proper to hold a licence. As Mr Kamal was not a member of NZICA, he also needed to be a member of a recognised body like RITANZ, which would confirm his good character, before he could apply for a licence.
The case
Mr Kamal argued that the RITANZ decision should have been forward-looking and should have considered the ability of NZICA to impose bespoke conditions on his practising licence. He also claimed the decision making process was flawed.
RITANZ has a wide discretion to decide whether an applicant meets their membership criteria and does not have to give reasons for its decision not to admit members. However, it still has to follow basic principles of natural justice.
The good character test
Mr Kamal was a chartered accountant and member of NZICA for 11 years until he resigned in 2012. During that time, NZICA investigated nine complaints against Mr Kamal, including for lack of technical competence and breach of the code of ethics. Three of those led to sanctions on his disciplinary record.
In 2013, he was convicted of six offences under the Tax Administration Act of providing false and misleading information with the intent to unlawfully obtain a tax refund between March 2006 and March 2007. NZCIA used its power to investigate charges against former members and found that, had Mr Kamal not voluntarily resigned, it would have removed his name from the NZCIA register.
Mr Kamal was also ordered to pay costs personally for his actions as a liquidator in 2015 when he failed to call a creditors' meeting, as required by the statute. He also at times advertised himself as being a chartered accountant and his company as being a registered liquidator and member of RITANZ, when neither were true.
In 2020, Mr Kamal attempted to enter into an arrangement with a licensed practitioner that would give him various rights and powers which would circumvent the effect of the Act. Between December 2017 and May 2020, he breached the reporting deadlines in the Companies Act 35 times.
The court rejected Mr Kamal's submission that RITANZ could find that a person was fit and proper only by imposing certain conditions. The Act sets a separate requirement to be satisfied that a person is fit and proper in section 57.
This is considered independently of the written agreement with NZICA in section 58 which can include conditions. The section 58 agreements are intended to bring anon-NZICA member within the ambit of NZICA's Code of Ethics and disciplinary process. It is not intended to be part of the minimum gateway test in section 57, which includes the fit and proper requirement. The court found that applicants are either fit and proper, or they are not. This is consistent with the approach to fit and proper tests in other licensing regimes like real estate.
The court confirmed that assessments of good character are forward-looking and that past convictions are not determinative of good character now. Nor is a good character assessment intended to act as a punishment for past bad behaviour. The court found that RITANZ was wrong not to take account of the mitigating factors outlined in the 2013 sentencing decision which may demonstrate a reduced risk going forward. Similarly, RITANZ should have taken account of Mr Kamal's acknowledgement that he made a mistake in failing to call a creditors' meeting in 2015, and of his responses to NZICA's decision to refuse his membership in 2020 as opposed to just the decision itself.
The court found that RITANZ was unfair and breached natural justice by finding that Mr Kamal would not have sought regulatory approval for the proposed agreement in 2020 without asking him to respond to that allegation directly.
However, the court found that the decision was not unreasonable because it was not possible to issue conditions solely for the purpose of helping someone meet the fit and proper test.
Result
The court issued a declaration regarding the errors identified in the decision. However, it found that NZICA could never grant Mr Kamal the licence he seeks because, as he accepted, did not meet the NZICA fit and proper test. For the same reasons, Mr Kamal could not meet the good character test for RITANZ membership. Because of this, the court declined to quash the decision.
Update: Mr Kamal appealed this decision to the Court of Appeal. RITANZ cross-appealed, arguing that the High Court was wrong to issue the declaration. On 7 October 2021, the Court of Appeal issued its reasons for dismissing Mr Kamal's appeal and allowing the cross-appeal (Kamal v RITANZ [2021] NZCA 514). The Court of Appeal found there was "more than enough evidence" for RITANZ to decide Mr Kamal did not meet the good character requirement and RITANZ did not make any errors of law.
For more information on how to challenge a decision like this, please contact Director Brigitte Morten.
