Liquidator publicly reprimanded for failing to do his duties

A liquidator disciplinary committee has publicly reprimanded Simon John Thorn for failing to adequately carry out his duties in connection with his appointment as administrator of Premier Energy Resources Pty Ltd.

The committee found that Thorn failed to make reasonable enquiries to satisfy himself that he had been validly appointed after a director said that he had not signed a resignation document that enabled the appointment.

The committee found that Thorn had failed to promptly apply to the court to confirm the validity of his appointment while questions remained about its validity.

Timeline of events

According to the committee report, Premier Resources had two directors before Thorn was appointed as voluntary administrator. On 20 June 2023, Thorn was notified by the first director that the second director had resigned earlier that day. The first director provided Thorn with documents appointing him as voluntary administrator of Premier Resources, signed by the first director as sole director.

Thorn requested that the first director provide him with a copy of the second director’s resignation letter. After being provided with a copy of the letter, Thorn checked the signature against other examples and concluded that it was sufficiently similar.

However, around a week later, the second director informed Thorn that he had not signed the director resignation letter, that such paperwork was falsified, that Premier Resources cannot be placed into administration by a single director, and that his appointment as director by one of the shareholders could not be revoked by the first director. Thorn spoke to the first director, who said the second director had signed the notice.

Upon obtaining legal advice, Thorn informed the second director and his appointing shareholder that he had no reason to dispute the documents provided to him, that Premier Resources was without funds, and invited them to apply to the court to determine the validity of his appointment.

The committee’s report further said that Thorn continued in his capacity as voluntary administrator of Premier Resources, including advertising for expressions of interest for its mining lease, conducting an investigation into its affairs, preparing reports to creditors, and chairing the first creditors meeting on 29 June 2023.

In July 2023, the second director informed Thorn that he had provided Thorn with proof that his appointment as administrator was invalid and that he needed to go to court to have it ratified. He also needed to give them an opportunity to present their concerns, according to the report.

The following month, Thorn informed his lawyer that an application to court to validate his appointment as voluntary administrator was now necessary. In September 2023, an application was made to the Supreme Court of NSW seeking to validate Thorn’s appointment as administrator of Premier Resources.

In October 2023, Justice Williams dismissed Thorn’s application in the matter of Premier Energy Resources Pty Ltd [2023] NSWSC 1185.

Decision

On 4 August 2026, the committee decided that:

1. Thorn, a registered liquidator, should remain registered.
2. He should be publicly reprimanded.
3. ASIC should publish a notice of the committee’s report on its website.

ASIC issued Thorn a show cause notice that required his written explanation of why his liquidator registration should continue. It said that it did not find Thorn’s response satisfactory.

When ASIC is not satisfied with a response to a show cause notice, it may convene a committee to determine whether disciplinary action should be taken. ASIC referred Thorn to the committee on 17 April, 2026.

According to ASIC, the committee underscored that where a director asserted that a registered liquidator had not been validly appointed because he had not signed a document essential to the appointment, the registered liquidator must make reasonable and prompt enquiries into the circumstances surrounding their appointment.

“If those enquiries do not resolve the dispute, the liquidator should promptly bring an application to court on the basis that they have not been validly appointed, rather than to carry out any functions and to exercise any powers,” ASIC said.

In arriving at its decision, the committee took into account that Thorn:

• Accepted he had learned from the experience and would seek court directions immediately if faced with similar circumstances in future.
• Had not previously been subject to disciplinary action.
• Was not alleged to have acted dishonestly.

“The committee’s decision to issue a public reprimand is a reminder to Mr Thorn and to insolvency practitioners generally of the need to at all times adequately perform the duties of a registered liquidator,” ASIC warned.