Mr Daniel Kirby, of Melbourne Victoria, has been sentenced to 2 years and 11 months imprisonment, for dishonest conduct and misuse of company funds in relation to his role as a director of the Berndale group; Berndale Capital Securities Pty Ltd (Berndale), Berndale Capital Securities Management Pty Ltd and Algoplus Pty Ltd.
On 10 July 2025, in the Federal Court of Australia in Melbourne, Mr Kirby was sentenced to 2 years and 11 months imprisonment, to be released after 12 months by recognisance of $1000 on the condition that he be of good behaviour for a further 3 years. Her Honour Justice Abraham said the offences "reflected an ongoing deliberate disregard by Mr Kirby for responsibilities he held and the trust reposed in him, given his position in the business" and that Mr Kirby "deliberately undermined an audit process to bypass a regulatory measure designed to protect consumers".
"Offences of this nature undermine the integrity of the Australian financial markets and system of corporate regulation and erodes the confidence of participants in the commercial world. Victims of this type of crime are not confined to those who directly suffer through loss of their funds but extend to the investing public at large."
On 15 May 2025, Mr Kirby pleaded guilty to one count of providing false or misleading information to an auditor, one count of dishonest use of position as a director and one count of dishonest conduct in relation to a financial service.
This matter was prosecuted by the Office of the Director of Public Prosecutions (Cth), following an investigation by ASIC.
It is the first ASIC matter to proceed in the Federal Court of Australia under its recently expanded corporate criminal jurisdiction.
Background
Mr Kirby was previously a director of collapsed retail over-the-counter derivatives provider Berndale Capital Securities Pty Ltd. He indicated an intention to plead guilty on the first day of a four-day committal hearing (24-204MR).
On 16 September 2024, co-accused and former Berndale director, 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 a case management hearing on 24 July 2025.
As a result of ASIC's investigation:
- In 2018, ASIC banned co-accused and former Berndale director, 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. Rachel Burdett-Baker and Bruno Secatore of Cor Cordis, Melbourne, were appointed to act as joint and several liquidators of all three companies (19-100MR). The liquidator's investigations identified over $8.9 million owing to former Berndale clients.
- In 2023, Mr D'Amore and Mr Kirby were charged with dishonesty offences, including misusing over $1 million in company funds (23-143MR).
- On 16 September 2024, Mr D'Amore was committed to stand trial in the criminal jurisdiction of the Federal Court of Australia on a date to be fixed. That matter is next listed for case management on 24 July 2025.
Previous media releases:
- 19-100MR ASIC succeeds in application to appoint a receiver to former OTC derivatives issuer Berndale Capital Securities Pty Ltd
- 23-143MR Former Berndale directors charged over dishonest conduct, misuse of company funds
- 24-204MR Former Berndale director pleads guilty to dishonest conduct and misuse of company funds
