KAMAL v RESTRUCTURING INSOLVENCY AND TURNAROUND ASSOCIATION OF NEW ZEALAND INC [2021] NZHC 1626

KAMAL v RESTRUCTURING INSOLVENCY AND TURNAROUND ASSOCIATION OF NEW ZEALAND INC [2021] NZHC 1626 [2 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-377[2021] NZHC 1626UNDER The Judicial Review Procedure Act 2016 and Part 30 of the High Court RulesIN THE MATTER of an application for Judicial ReviewBETWEEN IMRAN MOHAMMED KAMALApplicantAND RESTRUCTURING INSOLVENCY AND TURNAROUND ASSOCIATION OF NEW ZEALAND INCORPORATEDRespondentHearing: 26 May 2021Appearances: M Smith for the Applicant S Hunter QC and E Moran for the RespondentJudgment: 2 July 2021JUDGMENT OF GORDON JThis judgment was delivered by meon 2 July 2021 at 1 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Langford Law, WellingtonDLA Piper, WellingtonCounsel: M S Smith, WellingtonCONTENTSIntroduction ............................................................................................................... [1]Legislative framework .............................................................................................. [6]RITANZ .................................................................................................................. [15]Mr Kamal's background.......................................................................................... [19]The application and "hearing" process ................................................................... [31]RITANZ's decision ................................................................................................. [34]Ground 2 – alleged failure to have regard to mandatory relevant considerations; and Ground 3 – alleged improper purpose: thwarting the two-stage process ................ [52]Discussion ........................................................................................................... [65]Ground 1: alleged failure to apply the good character test in a forward-looking way................................................................................................................................. [78]Mitigating factors in 2013 sentencing for tax offending ..................................... [83]Acceptance of default in Stojkov v Kamal ......................................................... [88]Acknowledgements and corrective steps regarding late filings .......................... [91]Material prepared subsequent to 2020 NZICA decision addressing matters in that decision ........................................................................................................ [97]References ......................................................................................................... [102]Bryan Williams' report ...................................................................................... [105]Failure to consider rehabilitative steps prior to August 2020 ........................... [113]Ground 4: alleged mistakes/errors of fact and procedural unfairness: making findings that are unjustified and unfair ............................................................................... [119]Ground 5: alleged unreasonableness ..................................................................... [149]Further evidence .................................................................................................... [151]Relief ..................................................................................................................... [156]Costs ...................................................................................................................... [162]Introduction[1] The applicant, Imran Kamal, a Wellington-based insolvency practitioner, seeks judicial review of a decision by the respondent, Restructuring Insolvency and Turnaround Association of New Zealand Incorporated (RITANZ) declining his application for membership of that organisation (the decision). RITANZ declined Mr Kamal's application for membership because, although he met four of the five criteria in its rules governing membership, he did not meet the "good character" requirement.[2] Had Mr Kamal's application for membership of RITANZ been granted, this would have been the first step in the process towards the second step of Mr Kamal applying to the New Zealand Institute of Chartered Accountants (NZICA) for a licence which is required in order to practice as an insolvency practitioner1 under new legislation, the Insolvency Practitioners Regulation Act 2019 (the Act).[3] Mr Kamal says the decision by RITANZ refusing his membership application is legally flawed and should be set aside. He says the decision does not apply the good character test according to law, namely in a forward-looking way (ground 1); it fails to consider that NZICA at stage 2 of the process can impose bespoke licensing conditions on Mr Kamal's application (grounds 2 and 3); its fact finding exercise was flawed resulting in strained inferences obtained through procedural impropriety (ground 4); and its decision was not available on the evidence (ground 5).[4] RITANZ does not accept any of these allegations. It opposes Mr Kamal's application.[5] It should go without saying that on an application for judicial review such as this, it is not the role of this Court to form its own view of Mr Kamal's character. Rather, the Court must determine if the decision is legally flawed for any of the reasons argued by Mr Kamal. If the Court finds that is the case, Mr Kamal seeks a direction1 Defined in s 5 of the Insolvency Practitioners Regulation Act 2019 (the Act) as an administrator or a deed administrator, an insolvent company liquidator, a receiver and a trustee or provisional trustee appointed under the Insolvency Act 2006.that RITANZ reassess his application with the correct understanding of the legal framework for making its decision, as determined by this Court.Legislative framework[6] The purpose of the Act is to regulate insolvency practitioners and to establish an independent oversight system in order to promote quality, expertise and integrity in the profession of insolvency practitioners and compliance with the statutory duties of insolvency practitioners. 2[7] The Act contains a regime prescribing who may hold a licence as an insolvency practitioner. Without such a licence a person may not act in that capacity. 3[8] In order to obtain a licence a person may apply to an "accredited body". 4 The accredited body "must" issue a licence if the accredited body is satisfied: 5(a) the person meets the prescribed minimum standards;(b) is a "fit and proper" person to hold a licence;(c) pays the prescribed registration fee; and(d) the applicant is a member of the accredited body or s 57 applies to that person.(emphasis added)[9] Currently, the only accredited body under the Act is NZICA. Under s 9, it is for NZICA to determine whether a person should be licensed as an insolvency practitioner.2 Section 3.3 Section 8. Section 8(2) provides that it is an offence to act in breach of s 8 and a person is liable on conviction to a fine not exceeding $75,000.4 Section 5(1) provides that an "accredited body" is accredited under subpt 4 of pt 2 of the Act to act as a regulator.5 Section 9(2).[10] Mr Kamal is not a member of NZICA (issues around his former membership are discussed below). Accordingly, his route towards holding a licence as an insolvency practitioner is under s 57 of the Act. That section enables three classes of persons to apply to NZICA for a licence despite not being a member of NZICA. A person may apply if they are:(a) an overseas insolvency practitioner; 6 or(b) a member of a recognised body; 7 or(c) a practicing member of certain religious societies or orders. 8[11] RITANZ is a recognised body. 9 Additional requirements for qualifying under this route are that the accredited body has entered into a written arrangement with the person that complies with s 58; 10 and the accredited body is satisfied that the person has satisfactory competence, qualifications and experience to act as an insolvency practitioner; 11 and is otherwise a fit and proper person to be an insolvency practitioner.12 Section 58 sets out the required terms of the arrangement between the applicant for a licence and NZICA. The arrangement must state that it is entered into for the purposes of s 58 13 and must include a binding agreement by the applicant for a licence to be subject to the rules of the accredited body. 14 Section 58(2) provides that the arrangement may provide for any other matters that the accredited body thinks fit and includes a non-exhaustive list of matters.[12] A key plank of Mr Kamal's argument is that s 58(2) enables NZICA to impose bespoke or, in other words, individual-specific conditions upon an applicant's licence,6 Section 57(1)(a)(i).7 Section 57(1)(a)(ii).8 Section 57(1)(a)(iii).9 RITANZ obtained its recognised body status upon application to the Registrar of Companies and following Gazette notice on 19 August 2020 ("Insolvency Practitioners Regulation Act (Recognised Bodies) Notice 2020" (19 August 2020) New Zealand Gazette No 2020–go3786).10 Section 57(1)(b).11 Section 57(1)(c)(i).12 Section 57(1)(c)(ii).13 Section 58(1)(a).14 Section 58(1)(b).additional to the conditions that can be imposed through s 12 of the Act. RITANZ disagrees. I address this issue later in this judgment.[13] Under the transitional provisions in the Act, Mr Kamal is able to continue to act on his existing formal appointments that commenced prior to 1 September 2020, until 1 September 2021. 15 If Mr Kamal does not obtain the necessary exemption and/or licence by 1 September 2021, he will need to resign from those appointments.16[14] In Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc (Grant) RITANZ made three points by way of high-level commentary on the new statutory regime with which Muir J was in agreement.17 RITANZ repeats two of those three points 18 with which I am also in agreement:(a) The licensing regime was intended to lift the levels of professionalism for insolvency practitioners. Parliament contemplated that some existing practitioners would not be licensed. 19 Parliament recognised that the standards of some practitioners fell short of basic standards, and that removing poor practitioners from the industry would be a positive move.20 The good character requirement in RITANZ's rules mirrors the fit and proper requirement within the legislation itself.21For present purposes there is no distinction between those two requirements; and(b) In providing for NZICA and RITANZ to make their own membership decisions, Parliament chose a different regulatory approach to that which applies to lawyers. Under the Lawyers and Conveyancers Act15 Schedule 1, cl 5.16 Schedule 1, cl 5(2) of the Act.17 Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc [2020] NZHC 2876 at [14].18 The third point discussed in Grant was in relation to the involvement of other industry professionals in the decision-making process being an inevitable consequence of the statutory regime and provided context to any suggestion that good character adjudication by a panel of potential "competitors" was tainted by apparent bias.19 (24 August 2010) 666 NZPD 13543.20 (12 June 2019) 738 NZPD 11907 and 11909 per Hon Dr Megan Woods and Hon Paul Goldsmith respectively.21 Section 9(2)(a)(ii).2006, the High Court carries out the assessment of character which is a precondition to admission. In most cases, the High Court will rely on the New Zealand Law Society (Law Society) for certification of the required character. Where the Law Society declines to make that certification, the High Court will, on application, conduct its own inquiry. By contrast, under the Act, the relevant character assessment in this case was one for RITANZ to make.RITANZ[15] RITANZ is an incorporated society established on 6 October 2014. One of its key foundation objectives was the desire for a more formal (and at that stage voluntary) accreditation process. Under the rules of RITANZ (the rules) its objects include the promotion of high standards of practice and professional conduct in insolvency and corporate restructuring work; to provide or facilitate a self-regulatory framework for accredited insolvency practitioners with the aim of increasing public confidence in the work of accredited insolvency practitioners; and enhancing public recognition of RITANZ for the benefit of members in the community.22[16] RITANZ membership decisions are made by a panel of members of an elected board (the panel), and in accordance with the procedures set out in r 5 in RITANZ's rules. Membership requires the person to meet five criteria, four of which were met by Mr Kamal. Relevantly, r 5.2 provides that:In order to qualify for Membership an applicant for Membership must [among other things]: (d) be of good character (as determined by the Board in its absolute discretion).[17] Rule 5.5 confirms that decisions on membership are in the Board's sole discretion and under r 5.6 the Board is not required to give any reasons for determining22 Rules of Restructuring Insolvency & Turnaround Association of New Zealand Incorporated at 3.1(a) and (b) (ii) and (v).not to admit an applicant to membership. Despite the references to "absolute" and "sole" discretion, RITANZ accepts its discretion is not absolute, and that it must act in accordance with the principles of natural justice and in accordance with the law. 23[18] In the decision the panel acknowledges that the "good character" determination requires it to exercise an evaluative judgment and that it is not the exercise of a "pure discretion".Mr Kamal's background[19] Mr Kamal is a former chartered accountant and a former member of NZICA. Before his resignation from NZICA in 2012, he had been a chartered accountant for 11 years. During that period, NZICA had investigated nine complaints made against Mr Kamal. Three of those led to sanctions being placed on his disciplinary record. The complaints related to lack of technical competence, providing services without being instructed, making offensive comments, not releasing files and conduct in breach of the code of ethics relating to professional behaviour. 24[20] Mr Kamal currently practises in Wellington through his company Liquidation Management Ltd. He is also the sole director and the majority shareholder of New Zealand Debt Solvers Ltd (NZDS) and Advisory Accountants Ltd. As at the early part of 2020 at least, Advisory Accountants Ltd employed 11 people.[21] In 2013, Mr Kamal was convicted of six offences against s 143A of the Tax Administration Act 1994 of providing false and misleading information to the Commissioner of Inland Revenue with the intent to unlawfully obtain a tax refund. The offending occurred between March 2006 and March 2007 (the tax offending). Mr Kamal was 33 years old at the time of the tax offending. Mr Kamal was sentenced for that offending on 15 February 2013 to three months' home detention and 150 hours of community service.23 This was also accepted by RITANZ in Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc, above n 17, at [13].24 I refer to the three complaints in more detail in [26] below.[22] In the District Court, Mr Kamal unsuccessfully sought name suppression. He appealed to the High Court. Williams J allowed the appeal and granted permanent name suppression on the basis of fresh evidence filed in the High Court. 25 Subsequent to that decision the Crown applied to revoke name suppression on the basis of information it had unearthed. The background was that Mr Kamal had filed affidavit evidence on his appeal, saying upon hearing that suppression would be lifted, his wife attempted suicide and was hospitalised. The Judge had granted permanent name suppression in reliance on that evidence. The High Court granted the Crown's application to revoke permanent name suppression with the Judge saying: 26I also had the opportunity of seeing Mr Kamal under cross-examination. I found his evidence vague, evasive and inconsistent. The effect of the additional evidence filed by the Crown and Mr Kamal's unsatisfactory explanation is that his original affidavit in respect of his wife's suicide attempt cannot now be relied upon to support his application for name suppression.[23] In September 2012, prior to being sentenced for the tax offending, Mr Kamal had resigned from his membership of NZICA. However under its rules NZICA has powers to investigate charges against former members. On 9 June 2014, the Disciplinary Tribunal of NZICA (Disciplinary Tribunal) considered a charge against Mr Kamal that, because of his convictions for the tax offending, his fitness to practise accountancy had been adversely affected and he had brought the accounting profession into disrepute. Mr Kamal accepted the charge and made submissions in mitigation. The Disciplinary Tribunal found that if Mr Kamal had not voluntarily resigned it would have removed his name from the register of NZICA members.[24] In 2015, Mr Kamal had costs of $5,446 ordered against him personally as a liquidator in a High Court proceeding. 27 Associate Judge Bell found that this was not a simple error of judgment on Mr Kamal's part. Mr Kamal had refused to hold a creditors' meeting knowing the law. The Judge found that Mr Kamal's conduct was so unreasonable and out of the ordinary, that he should pay the order for costs personally. 2825 K v Inland Revenue Department [2013] NZHC 2426.26 Inland Revenue Department v Kamal [2013] NZHC 3474 at [13].27 Stojkov v Kamal [2015] NZHC 2513.28 At [11].[25] In 2019 and again in 2020, Mr Kamal attempted to obtain a licence as an insolvency practitioner by applying to NZICA for readmission as a member of NZICA.[26] The decision of the Disciplinary Tribunal recommended to the Regulatory Board of NZICA that Mr Kamal not be readmitted as a member (2019 NZICA decision). The Disciplinary Tribunal referred to three investigations prior to Mr Kamal's resignation which had led to sanctions being placed on his disciplinary record (referred to in [19] above). On 6 October 2009, the Professional Conduct Committee of NZICA (PCC) had imposed sanctions on Mr Kamal in the main in relation to conduct disclosing a lack of technical competence in undertaking audit, insolvency and taxation engagements. On 15 June 2010, the PCC cautioned Mr Kamal for providing services without being instructed by the client to do so, making offensive comments and not releasing files in a timely manner. On 10 November 2011, the Disciplinary Tribunal ordered that Mr Kamal be censured and pay costs of $45,000 (later reduced on appeal to $30,000). It found his conduct (in general terms his professional behaviour) to be a breach of the relevant Code of Ethics but that it fell just short of conduct unbecoming an accountant.[27] Further, in 2013, NZICA had filed five charges against Mr Kamal for improper use of terms implying membership of NZICA. Mr Kamal pleaded guilty to the charges and was discharged without conviction. Despite that prosecution, there was evidence before the Disciplinary Tribunal that twice in 2017 and again 2018, Mr Kamal was still using material implying that he was a chartered accountant when he was not. That material included an email sign off. Mr Kamal acknowledged at the hearing before the Disciplinary Tribunal that the email sign off had been changed only recently for the purposes of his application for membership of NZICA (in circumstances following his receipt of communications about the issue from NZICA in 2017).[28] The Disciplinary Tribunal also referred to a finding in March 2017 on the balance of probabilities that Mr Kamal verbally told prospective clients he was a chartered accountant when he was not. The Disciplinary Tribunal concluded in its recommendation that it was not satisfied that Mr Kamal had discharged the onus to the requisite standard that the disqualifying characteristic (a lack of integrity in thewider sense) no longer existed and that he was currently a fit and proper person to be readmitted. The Disciplinary Tribunal recommended to the Regulatory Board of NZICA that it decline Mr Kamal's application for readmission. Mr Kamal withdrew his application before the NZICA Regulatory Board could make a decision.[29] In February 2020, Mr Kamal made a fresh application for readmission as a member of NZICA. In its decision of 15 June 2020 (2020 NZICA decision), the Disciplinary Tribunal recommended to the Regulatory Board of NZICA that it decline Mr Kamal's application for readmission. The Disciplinary Tribunal considered Mr Kamal's application on a de novo basis. The Disciplinary Tribunal determined that Mr Kamal had not demonstrated adequately that he had sufficient insight or that his ethical standards and integrity aligned with that expected of a chartered accountant. The Disciplinary Tribunal further stated that reformation from disqualifying behaviour to achieve a fit and proper person standard requires an assessment of behaviour on a case by case basis in a sustained way over a continuous period during which impeccable behaviour is demonstrated, driven off the principles of the Code of Ethics. It concluded that was not the case on any view of the evidence before the Disciplinary Tribunal.[30] Part of Mr Kamal's complaint is that when RITANZ referred to the various proceedings and matters referred to above (all of which Mr Kamal mentioned in his application) RITANZ did not consider (or does not mention) mitigating facts relevant to each which he says were important considerations in making the "good character" assessment. I will refer to those claimed mitigating factors in due course.The application and "hearing" process[31] Mr Kamal filed his application for membership of RITANZ on 18 August 2020. The application was accompanied by a statement from Mr Kamal, together with 20 attachments that included: a report from clinical psychologist Shelly Lomas; a report from Bryan Williams (an experienced insolvency practitioner who had undertaken a review of 15 of Mr Kamal's liquidation files); the District Court Judge's sentencing notes of 15 February 2013; the 2019 and 2020 NZICA decisions; his record of continuing professional development; personal references from a charteredaccountant, clients, a liquidator, his Iman and various others; and his liquidation checklist. The application was followed up with legal submissions.[32] Mr Kamal's application was discussed at the monthly meeting of the RITANZ Board (the Board) on 4 September 2020. Due to the issues that were apparent on the face of the application, in particular the tax offending and the 2020 NZICA decision refusing Mr Kamal's application to be re-admitted as a member, the Board determined that a panel of the Board should consider the application. The Board also considered that it was appropriate that Mr Kamal be given the opportunity for an oral hearing. Mr Kamal was notified by letter dated 18 September 2020 that there would be an oral hearing on 1 October 2020. On 25 September 2020, RITANZ wrote to Mr Kamal providing additional details of the matters the panel wished to consider at the oral hearing. On 30 September 2020, the day before the proposed hearing, Mr Kamal provided a second statement responding to the matters raised in RITANZ's letter of 25 September 2020. In his second statement, Mr Kamal advised RITANZ that his doctor had recommended that he should not personally attend any hearing as it was likely to adversely affect his mental health. He enclosed a medical certificate in support. Mr Kamal advised he would not be attending the hearing but his lawyer and Ms Lomas would attend.[33] In response, the panel wrote to Mr Kamal's lawyer postponing the 1 October 2020 hearing and, acknowledging the stress Mr Kamal was under, asked whether he had a proposal for an alternative process he wished to put forward for the panel to consider. After further correspondence, the panel and Mr Kamal agreed on a process whereby the panel would provide written notice of any further factual matters of concern, Mr Kamal would then have 10 days to provide any further comments or submissions and a decision would be issued within 14 days of receipt of those further comments or submissions. As part of this process Mr Kamal provided five further statements. This was part of an iterative process which included the panel asking questions over concerns it had regarding the content of his statements or matters that the panel considered required further investigation by way of explanation from Mr Kamal.RITANZ's decision[34] The decision commences by referring to the new licensing regime under the Act and then by referring to the process that was followed for determining Mr Kamal's application. It then sets out background matters starting with Mr Kamal's previous practice as an accountant and then as a chartered accountant. The decision refers to the three instances leading to sanctions being placed on Mr Kamal's disciplinary record when he was a member of NZICA. The decision then moves to Mr Kamal's tax offending in 2012 and refers to the 2013 decision of the High Court revoking permanent name suppression. There is then a section on Mr Kamal's NZICA history which refers to his resignation as a member, his admission of a disciplinary charge, and his unsuccessful applications in 2019 and 2020 for readmission as a member of NZICA.[35] There follows a section, in three parts, which sets out Mr Kamal's conduct as an insolvency practitioner. The first part refers to the website of NZDS which was incorporated in 2017. In 2017, RITANZ had raised with Mr Kamal the fact that the NZDS website included the RITANZ word and logo and also the statement "our registered liquidator is a member of Restructuring Insolvency & Turnaround Association of New Zealand". Mr Kamal subsequently removed the reference. The decision goes on to refer to what it says were further "false references" to there being a "registered New Zealand liquidator" and "registered liquidator" on the NZDS website at the time of Mr Kamal's application.[36] The decision records that the panel also raised concerns about other language on the website that could be misleading regarding the employment of in-house legal counsel. On this issue, Mr Smith criticises the panel's response to Mr Kamal's explanation as part of ground four of his appeal. I will return to this issue.[37] The second part of Mr Kamal's conduct as an insolvency practitioner referred to by the panel, is under the heading "Compliance with insolvency laws". The decision refers to the judgment of Associate Judge Bell in 2015 where Mr Kamal was found to have breached his duties as a liquidator and was liable for costs personally.[38] This section of the decision also refers to a draft deed of arrangement (draft deed) for the taking of appointments which was sent by Mr Kamal to an accredited insolvency practitioner in Tauranga. The draft deed states that the Appointer (Mr Kamal and/or Liquidation Management Ltd) is unable to take appointments as an insolvency practitioner from 1 September 2020 and that the Appointer intends to remedy the situation but requires an insolvency practitioner to take appointments in the interim period. The panel considered that the draft deed, in reserving to the Appointer numerous significant rights and powers held by the office of the liquidator, appeared to circumvent licensing requirements under the Act.[39] The decision notes Mr Kamal's explanation that it was a draft deed which had been prepared by his solicitor. The decision sets out queries the panel raised with Mr Kamal and his explanations. The panel concluded that Mr Kamal had not satisfied the panel that he would have sought regulatory approval for the form of the agreement. It was concerning to the panel that Mr Kamal was comfortable enough with the draft deed to propose it to the accredited insolvency practitioner despite its apparent inconsistency with the regulatory regime which the panel said should have been apparent to such an experienced practitioner.[40] The decision continues, stating that Mr Kamal demonstrated an unwillingness to engage with the panel on the ethical issues which were evident in the draft deed. He did not appear to be willing to take responsibility for the content of the draft deed. The panel's conclusion that Mr Kamal had not satisfied the panel that he would have sought regulatory approval for the form of the draft deed is raised in ground four of the review. I will return to this issue.[41] The third part of this section includes a discussion of the report prepared by Bryan Williams following a recommendation made by NZICA. In his report of August 2020, Mr Williams peer reviewed five completed and 10 open liquidation matters for Mr Kamal's appointments. The decision notes that the focus of the review was not the "good character" assessment that was before the panel.[42] The decision refers to Mr Williams' overall conclusion: that Mr Kamal was "genuinely endeavouring to provide a service that is valuable to the community andin respect of which he has an entitlement to be paid. Nothing that I have seen suggests that the standard, or any fitness standard for that matter, is flagrantly disregarded".[43] The panel acknowledged that Mr Williams' report provided a generally favourable view of Mr Kamal's practices and procedures, but noted that Mr Williams stated that he did not select the files to be reviewed, despite that being a requirement recorded in correspondence between Mr Williams and Mr Kamal. The decision states that the panel was unable to determine therefore whether Mr Williams reviewed a representative or random sample of Mr Kamal's files. The decision says that Mr Williams' report also identified some matters of concern for the "good character" question before the panel. First, the report stated that Mr Kamal had an unacceptable mode of operation that pursued shareholder current accounts for the express purpose of realising fees. In response to a question from the panel, Mr Kamal was not able to provide any example of where his pursuit of current accounts had resulted in a distribution over the several years during which he had acted as a liquidator. Mr Kamal makes a complaint about the panel's treatment of Mr Williams' report. I will return to that issue.[44] The decision also records that Mr Kamal had a pervasive record of non- compliance with his reporting obligations under the Companies Act 1993. The decision notes that while Mr Kamal had made commitments to Mr Williams and RITANZ to comply with these obligations, he had continued to breach the legislative timeframes and on occasion had diverted blame to his staff for either providing a misleading commitment or failing to comply with the commitment. That latter finding forms part of ground four of this review. I will return to that issue.[45] The decision then moves to a consideration of the psychological report provided by Ms Lomas. The panel notes that the report was prepared for the stated purpose to assist the PCC of CAANZ to determine whether Mr Kamal had accepted and gained insights into the appropriateness of his past behaviours and to describe the insights Mr Kamal had gained and how those insights were likely to affect Mr Kamal's future conduct.[46] The decision goes on to state that Ms Lomas' report does not address insight into (among other things) the matters of concern identified in the decision or Mr Kamal giving incorrect evidence in relation to name suppression, or his misrepresentations about his professional status during the last three to four years, which had been subject to reprimand by NZICA and RITANZ. The panel also notes Ms Lomas' report confirms that Mr Kamal made a calculated decision to commit the tax offending and that, at the time, he felt a degree of resentment at the amount of tax he was paying and believed he should be in a different tax bracket. Mr Kamal makes a complaint about the panel's treatment of Ms Lomas' report. I will return to that issue.[47] Finally, amongst the documents before the panel and referred to in the decision were the references filed in support of Mr Kamal's good character. The decision notes there is support for his character as a family man and the references showed a positive involvement in his community, including youth mentoring, fundraising, physical work, support of migrant and refugee families, pro bono accounting work for community members, his repeated election to committees of Muslim organisations in Wellington, and his position as treasurer and trustee on various associated organisations. Mr Kamal also complains about the treatment of references which I will return to.[48] The decision then addressed the good character requirement in RITANZ's rules.[49] In addressing the good character requirement the panel had the benefit of the then, recent decision of this Court in Grant.29 The panel also referred to the Supreme Court decision which considered a similar requirement under the Lawyers and Conveyancers Act in New Zealand Law Society v Stanley. 30 The decision (correctly) sets out principles from those cases. In particular, the panel records that the focus of the assessment must be on whether the applicant is of good character now and that this is a forward-looking exercise. The decision also notes the principle that where an applicant has previous criminal convictions, RITANZ should not presuppose that the29 Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc, above n 17.30 New Zealand Law Society v Stanley [2020] NZSC 83.convictions are relevant evidence of whether the applicant is of good character now. It should assess their relevance taking into account all relevant factors.[50] In the assessment section that followed, the panel states:(a) There was evidence that Mr Kamal had committed dishonesty offences and had at least recklessly, consistently misled the public about his status as a chartered accountant, as a "registered" liquidator, and as a member of RITANZ and that the misrepresentations of his status had occurred as recently as during the application process;(b) The tax offending occurred when Mr Kamal was well into adulthood and his practising career. It was relatively complex and premeditated. While there was no evidence of further criminal offending since then, there had been several instances of misconduct including making false statements to the public;(c) Mr Kamal was found to have knowingly breached the law in 2015 with regard to holding a creditors' meeting and Mr Kamal's responses to questions about the 2020 draft deed with Mr Thomas showed that Mr Kamal did not understand the gravity of being a party to an arrangement that would circumvent the effect of the Act. That conduct formed a pattern in Mr Kamal's business practices;(d) Mr Kamal's response that he had reformed and would do what RITANZ required of him is noted, as is the report of Mr Williams which, the panel states, reflects some support with regard to competence but that report also contains conclusions about Mr Kamal's practice that are matters of concern with regard to "good character";(e) While the references were generally supportive of Mr Kamal in the community, they did not address the panel's present concerns arising from the course of earlier dishonesty, relatively sustained misrepresentation (at least over several years) about his professionalstatus and unwillingness to take responsibility for what was said about his business;(f) There had been no sustained period leading up to the present day (and looking forward) without material incident impacting on the question of "good character";(g) The panel accepted Ms Lomas' conclusions that Mr Kamal was able to "openly discuss his beliefs around the wrong-doing of his behaviour" and that before her he was able to identify some drivers of his criminal offending and that he had some insight (in her words) into his offending. The panel noted that this progress was relatively recent (in August 2020) and arose after applications to NZICA resulted in negative recommendations; but the report did not satisfy the panel that issues with Mr Kamal's character, arising from the evidence discussed in the decision, had been "spent" or most importantly that looking to the future that Mr Kamal did not pose a material risk to the public or the profession in the future; and(h) While Mr Kamal had acknowledged much of his wrong-doing he had not demonstrated to the panel's satisfaction that he engages meaningfully with misleading behaviour, was prepared to take responsibility for that behaviour, and that such behaviour is not likely to recur. The decision refers to Mr Kamal deflecting blame onto others on matters that were his responsibility, such as the false statements on the website, the late filings referred to in the report of Mr Williams and the draft deed sent to Mr Thomas.[51] The decision concludes that the panel was satisfied that the evidence of misconduct and unsatisfactory behaviour set out in the factual findings remained relevant such that in the panel's assessment, Mr Kamal did not meet the standard of "good character" in the RITANZ rules.Ground 2 – alleged failure to have regard to mandatory relevant considerations; and Ground 3 – alleged improper purpose: thwarting the two-stage process[52] In his oral submissions, Mr Smith first addressed these two grounds together as they are a key part of Mr Kamal's case. Mr Kamal's overarching position is that conditional licensing is available. A conclusion on this issue will be relevant when considering this part of Mr Kamal's argument on ground 1, the alleged failure to apply the good character test in a forward-looking way (he had proposed that his accreditation as an insolvency practitioner be subject to conditions). I will discuss the grounds of appeal in the same order as argued.[53] Mr Smith submits that the Act (unlike the Lawyers and Conveyancers Act) explicitly contemplates an applicant being licensed subject to conditions and that conditional licensing is a fundamental part of the regulatory scheme. He says RITANZ did not turn its mind to conditional licensing, despite Mr Kamal's application being premised on the imposition of conditions.[54] Mr Smith submits that RITANZ's failure renders the decision unlawful. Mr Smith submits that under the statutory scheme, NZICA has the power to regulate the behaviour of insolvency practitioners because (or as if) they are its members. Therefore, NZICA's determination of whether someone should be a licensed insolvency practitioner is central to the effective functioning of the regulatory scheme.[55] Mr Smith submits that NZICA has a broad discretion as to the terms of the written arrangement with an applicant, and that Parliament has given clear guidance in s 58(2) as to what terms might be contained in the arrangement. Mr Smith submits it is clear from the list of items in s 58(2) that Parliament contemplated that individuals might meet the standards for becoming licensed insolvency practitioners, but nonetheless need to be supervised or monitored, through "bespoke" or "individual- specific" requirements tailored to the individual's circumstances. Mr Smith says there is no other way to explain why matters, such as ongoing competence matters promoting compliance with regulatory requirements/standards, or the promotion of reasonable care in carrying out of insolvency engagements were included in s 58(2).[56] Mr Smith says it follows from the above that when assessing whether someone is a "fit and proper" person under the Act (at least under the route to a licence in this case) RITANZ was required to have regard to the possibility of a person being a "fit and proper" person if appropriately monitored or supervised.[57] He submits the imposition of conditions provides a mechanism by which NZICA can monitor an applicant's compliance with standards to ensure that any residual concerns about risk do not eventuate. This provides a flexibility not found in the Lawyers and Conveyancers Act. 31[58] Mr Smith says this approach provides for harmonisation between Parliament's concern that matters be identified before harm is done, and its treatment of the "fit and proper" standard as one of the "minimal" eligibility requirements.[59] In a related submission, Mr Smith says RITANZ is obliged to function as part of a regulatory scheme. Mr Smith submits it would be odd if an applicant who could meet the regulatory standards of the Act (via the imposition of conditions imposed by NZICA) would nonetheless fail to become licenced because of RITANZ's refusing to recognise that such conditions might be imposed. Such an approach would mean that RITANZ was acting in a manner that counters Parliament's regulatory approach. When the recognised body may determine whether a particular applicant meets the standard at the first stage, it must do so in a manner that recognises Parliament was comfortable with "conditional approvals".[60] Second, Mr Smith says, on RITANZ's approach it would mean that the power of NZICA as the accredited body to set conditions in terms of s 58 becomes devoid of purpose. No applicant could ever get to the second stage.31 Compare New Zealand Law Society v Stanley, above n 30, at [80] where the Supreme Court refers to the case of offending whilst in practice, on-going practice may be permitted but subject to conditions as to practice (citing the Lawyers and Conveyancers Act, s 246(2)-(4)); but by contrast at the admission stage, the applicant for admission is either admitted or not admitted. In other words admission may not be made subject to a condition or undertaking restricting practise.[61] Mr Smith says this error can be analysed either as improper purpose or in terms of mandatory relevant considerations On either approach, RITANZ acted unlawfully, its error was a serious one cutting across the regulatory scheme enshrined in the Act.[62] Ms Moran, who argued this part of the case on behalf of RITANZ, submits that Mr Kamal's position is based on a misunderstanding of how the regime and the Act operate. She says NZICA can only prescribe conditions on licences in accordance with s 12 of the Act which provides that when NZICA issues a licence to an insolvency practitioner, that licence is subject to the conditions prescribed under s 22(1)(b)(i) andmay be subject to any conditions prescribed under s 22(1)(b)(ii) that the accredited body thinks fit. The conditions in s 22(1)(b) are those prescribed by the Registrar of Companies by notice in the Gazette. The Registrar has prescribed mandatory conditions by Gazette notice of 26 March 2020.32 Ms Moran notes the Registrar has not yet prescribed any conditions pursuant to s 22(1)(b)(ii) but any such conditions would be general conditions that any insolvency practitioner's licence may be subject to. Accordingly, Ms Moran says under the current licensing regime, NZICA is unable to impose any bespoke conditions or applicant-specific conditions for individual licence holders.[63] In his oral submissions, Mr Smith made it clear that in using the word "conditions" he was not intending to refer to the part of the regime governed by ss 12 and 22. Rather, his use of the word "condition" or "conditions" was intended to be a reference to the word "arrangement" in ss 57 and 58.[64] In response, Ms Moran submits that s 58 of the Act does not permit NZICA to impose conditions on a licence. Rather, it sets out the requirements for any arrangement between NZICA and Mr Kamal.32 "Insolvency Practitioners Regulation Act (Prescribed Minimum Standards, Conditions and Requirements for Ongoing Competence, for Licensed Insolvency Practitioners) Notice 2020" (26 March 2020) New Zealand Gazette No 2020-go1403.Discussion[65] Mr Smith's argument comes down to the proposition that by the imposition of conditions (or to use the statutory word in s 58 an "arrangement") a person may pass through the "fit and proper" gateway, when without the conditions, they would not.[66] There are a number of problems with that proposition. The first arises as a consequence simply of statutory interpretation. For the purposes of this discussion, I set out the relevant parts of s 57 as follows:57 Exemption from membership requirement for certain overseas practitioners, members of recognised bodies, and members of religioussocieties and orders(1) This section applies in respect of a person (P) if—(a) the accredited body is satisfied that P is—(ii) a member of a recognised body; or(iii) ; and(b) the accredited body has entered into a written arrangement with P that complies with section 58; and(c) the accredited body is satisfied that P—(i) has satisfactory competence, qualifications, and experience to act as an insolvency practitioner; and(ii) is otherwise a fit and proper person to be an insolvency practitioner.(2) In this section, a recognised body is a person (for example, an incorporated professional body or industry group) that is recognised, by notice in the Gazette, by the Registrar for the purposes of this section.[67] The first point is that the requirements in s 57 are separate and conjunctive. In relation to the "fit and proper" requirement this is emphasised by the use of the word "otherwise" in the expression "is otherwise a fit and proper person". The requirement for a written arrangement that complies with s 58 is a separate requirement. Given the separate and conjunctive nature of the requirements emphasised by the word"otherwise" I do not consider that s 57 anticipates that the s 58 written arrangement can be employed to bolster an individual's "fit and proper" status.[68] This view is confirmed by the wording of s 58 which provides:58 Requirements for arrangement(1) For the purposes of section 57, the arrangement must—(a) state that the arrangement is entered into for the purposes of this section; and(b) include a binding agreement by P to be subject to the rules of the accredited body that are described in section 36(1).(2) The arrangement may provide for any other matters that the accredited body thinks fit, including matters relating to—(a) ongoing competence requirements:(b) reports and access to information:(c) the promotion of compliance with the requirements imposed by or under any enactment that relate to the carrying out of insolvency engagements:(d) the promotion of compliance with any relevant standards relating to insolvency engagements:(e) the promotion of reasonable care, diligence, and skill in the carrying out of insolvency engagements:(f) the payment of fees:(g) the term of the arrangement.(3) Without limiting the means of enforcing the arrangement, the arrangement is binding on P as if P were a member of the accredited body.[69] As already discussed, this part of the Act is utilised when an applicant is not already a member of NZICA, as is the case with Mr Kamal. In such a case, the applicant is not bound by NZICA's rules or its Code of Ethics or subject to its disciplinary processes. I accept Ms Moran's submission that s 58 is a necessary statutory provision to enable NZICA to ensure that this class of applicant, who is applying for a licence through an alternative pathway, will be subject to those requirements. It is a discrete and distinct section, separate from the fit and proper person test in s 57(1)(c)(ii) which is a minimum gateway. Section 58 sets out themechanics of how an applicant for a licence through this alternative route will come to be within NZICA's responsibility as the accredited body. Those mechanics are largely reflected in s 58(1) which provides what the arrangement must state and include.[70] Section 58(2) contains a non-exhaustive list of other matters which may be included in the arrangement. The matters in s 58(2), apart from payment of fees 33 and the term of the arrangement 34 are all directed towards professional competence and ability to carry out insolvency work. Mr Smith submits that a fit and proper requirement is a subset of professional competence. Whether that is correct or not in a general sense, having regard to the provisions in the statute, I do not accept that submission. As Mr Smith himself points out, Parliament saw benefit in a wide variety of practitioners acting as insolvency practitioners servicing a wide range of communities and files.35 As reflection of that perceived benefit there is an alternative route for licensing people who are not members of NZICA. However, those practitioners must still have the technical skills and expertise required to undertake insolvency work to a high standard. That is reflected in the matters that may be included in an arrangement under s 58(2).[71] An analysis of ss 57 and 58 leads to the conclusion that the licensing regime under the Act does not contemplate that an applicant could be a fit and proper person only with conditions (or arrangements) on their licence. An applicant is either a fit and proper person, or they are not.[72] The Court was referred to a judgment of this Court in Registrar of Real Estate Agents Authority v Cavanagh.36 In that case the High Court considered whether or not a real estate agent could meet the "fit and proper" person requirement in the Real Estate Agents Act 2008 for a salesperson's licence by being subject to a "scheme of supervision and monitoring". Fitzgerald J held that the scheme of the Real Estate Agents Act contemplates a "binary" decision in that an applicant is either a fit and proper person to be granted a licence or they are not. The Judge held that the Act did33 Section 58(2)(f).34 Section 58(2)(g).35 Insolvency Practitioners Bill 2010 (141-2) (select committee report) at 4.36 Registrar of Real Estate Agents Authority v Cavanagh [2021] NZHC 680.not contemplate or enable a "half-way house" approach, such as imposing de facto "conditions" on an applicant's licence. 37 As a consequence, Fitzgerald J accepted that it was not appropriate to conclude that an applicant is a fit and proper person to hold a salesperson's licence on the basis of comfort to be drawn from a detailed scheme of supervision and oversight.38 The Judge stated:[112] I therefore accept the Registrar's submission that it is not appropriate to conclude that an applicant is a fit and proper person to hold a salesperson's licence on the basis of comfort to be drawn from a detailed scheme of supervision and oversight. The inference to be drawn in such circumstances is that those detailed arrangements are only required because an applicant is, without them, not a fit and proper person to hold a licence. I also accept the Registrar's submission that reliance on such schemes risks "watering down" the baseline requirement of the Registrar and/or Tribunal being satisfied an applicant is a fit and proper person to hold a real estate licence. Again, they are either fit and proper to do so, or they are not.[73] Mr Smith sought to distinguish Cavanagh on the basis that the Real Estate Agents Act does not include any power to impose conditions on licences granted under that Act. But for the reasons I have already given, NZICA cannot impose conditions on a licence for the purpose of enabling an applicant to satisfy the "fit and proper" person requirement.[74] As Ms Moran points out, the requirement that an applicant for a real estate licence is a fit and proper person is a key statutory mechanism by which the Real Estate Agents Act's purpose of consumer protection is met.39 I agree that while real estate agents and insolvency practitioners are different professions, the public protection objectives of the two licensing regimes are the same. As with real estate agents, any dilution of the fit and proper person requirement would undermine the public protection purposes of the regime and the Act.[75] One of Mr Smith's submissions was that at the first stage of the process towards obtaining a licence, the need for "public protection" would not arise. That need would only arise on the applicant obtaining a licence. Whether that is the case or not, the argument does not have any traction given my decision that NZICA cannot impose conditions to allow the fit and proper person requirement to be met.37 At [111].38 At [112].39 Real Estate Agents Act 2008, s 3.[76] The above analysis effectively answers Mr Smith's submission that RITANZ failed to recognise its part in a regulatory scheme pursuant to which NZICA can impose conditions on a licence. But in any event, RITANZ is entitled to include a "good character" requirement as one of its criteria for membership. RITANZ's rules specifically provide for this and the Registrar of Companies approved RITANZ as a recognised body based on those rules. The regulatory framework allows for RITANZ to make its own assessment as to membership.[77] To conclude on these two alleged errors of law, the Act does not contemplate licences being issued under the Act by NZICA with bespoke or individual-specific conditions to enable the "fit and proper" test to be satisfied. A person is either fit and proper or they are not. It follows that there is no requirement for RITANZ to have regard to what was said to be NZICA's ability to enter into an arrangement with Mr Kamal under s 58 of the Act as part of RITANZ's good character assessment on an application for membership of RITANZ. There were no errors of law as alleged by Mr Kamal. I find against Mr Kamal on these two grounds.Ground 1 – alleged failure to apply the good character test in a forward-looking way[78] Mr Kamal accepts that the summary of the law in the decision taken fromStanley as modified by Grant, correctly states that the required assessment is a forward-looking exercise. But Mr Smith says, from reading the decision as a whole, RITANZ did not in fact undertake a forward-looking exercise in the decision. He submits, drawing on Grant, a forward-looking exercise should display at least the following characteristics:(a) An analysis of the particular risk posed by the concern (i.e. why the decision-maker was concerned that the particular conduct is evidence of a risk to the public or the profession); 4040 Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc, above n 17, at [72]-[73].(b) An evaluation of that risk, taking into consideration any mitigating factors identified by the applicant in relation to that conduct; 41 and(c) An overall evaluation of character, informed by the concerns, the mitigating factors/explanations identified for those concerns, and any changes or developments over time. 42[79] Mr Smith submits that it follows that if the overall evaluation of character at the third step is done without a proper analysis of mitigating factors, explanations or developments over time, then it may become too focused on negative conduct. This frustrates the purpose of the regulatory regime and cuts across the guidance in Stanley. Mr Smith submits the decision falls into this trap providing examples as follows:(a) In considering the tax offending the panel did not identify or assess mitigating factors referred to by the sentencing Judge;(b) In considering the 2015 case of Stojkov v Kamal the panel did not identify or assess the significance of Mr Kamal accepting and addressing the default identified by the Associate Judge;(c) In considering late filings, the panel did not identify or assess the significance of Mr Kamal's acknowledgments and corrective steps he had taken;(d) In relation to the application to NZICA for membership in 2020, the panel did not identify or assess the significance of material Mr Kamal subsequently forwarded to NZICA which he says addressed NZICA's stated concerns;(e) In considering references, the panel did not identify or assess the significance of trust roles held by Mr Kamal;41 At [76]-[81].42 At [84]-[90].(f) In considering Mr Williams' report, the decision did not identify or assess Mr Williams' complete "fitness to practice" conclusion. Further the Tribunal found that Mr Williams' review lacked integrity without engaging with evidence to the contrary; and(g) In considering rehabilitative steps taken by Mr Kamal, the panel did not identify or assess any steps taken prior to August 2020. This affected the panel's treatment of the report from the registered psychologist, Ms Lomas.[80] Mr Smith also submits under this ground there was a failure to assess the significance of conditions proposed by Ms Lomas and Mr Williams, for the purpose of the good character assessment. That submission does not require consideration at this point having regard to my decision on the second and third grounds of review above.[81] For RITANZ, one of the panel members has sworn an affidavit and he deposes that the panel carefully went through all the material provided by Mr Kamal and that they were informed in their process by the decision in Grant.[82] I now address each of the alleged omissions or failures in turn.Mitigating factors in 2013 sentencing for tax offending[83] Mr Smith says the decision describes Mr Kamal's tax offending without reference to the fact that the offending took place not in a professional context but in a personal context. However, Mr Kamal's charges were for aiding and abetting his company, Accounting First Ltd, in providing false income tax returns, false GST returns and providing misleading information to the Commissioner. The company also faced those charges as a principal. The company was the vehicle through which Mr Kamal conducted his business as a professional. In those circumstances there is a fine distinction between personal and professional context. I do not consider the decision can be criticised on this point.[84] However there were a number of mitigating features which led the sentencing Judge to reduce the starting point for the sentence. Mr Kamal repaid all of the money owed; he made a charitable donation of $10,000; he gave evidence for the Crown; he apologised to Inland Revenue; and he pleaded guilty at the earliest opportunity.[85] Having regard to the mitigating factors, from a starting point of nine months' imprisonment, the Judge imposed a sentence of three months' home detention and a sentence of 150 hours community work.[86] Mr Smith also submits that the decision fails to mention that this offending was Mr Kamal's first and only offending of any type. However the decision does state that there is no evidence of further criminal offending since the tax offending.[87] I accept Mr Smith's submission that the decision does not refer to the mitigating features of the tax offending identified in the sentencing decision. The panel should have done so and made its assessment taking into account those mitigating factors. The purpose of the good character assessment is not to punish for past misconduct, which is primarily the role of the criminal law. Rather it is about focusing on public protection and professional reputation looking forward. Any mitigating features are relevant because they may demonstrate a reduced risk in the future. 43Acceptance of default in Stojkov v Kamal[88] In his first statement which accompanied his application, Mr Kamal refers to the decision of Associate Judge Bell and he acknowledges that costs were ordered against him personally on the basis that he unjustifiably refused to call a creditors' meeting when the law required that. In his statement he said he acknowledges he made a mistake in not calling a creditors' meeting during the liquidation of the company concerned. He says it was early in his insolvency career and he was acting on legal advice that he could try to negotiate with the other parties to avoid the cost to the company of a creditors' meeting. He says he was not as experienced as he is now and would not make that mistake again.43 New Zealand Law Society v Stanley above n 30, at [45], [49] and [54](e).[89] There is a degree of consistency between Mr Kamal's explanation now and what is recorded in the judgment of the Associate Judge, namely Mr Kamal's claim that the cost of the meeting was not justified. The Associate Judge said: 44 Mr Stojkov's lawyer did give notice within the required 10 working days. In response, Mr Kamal maintained that the notice was outside the 10 working days. That was incorrect. Mr Stojkov's lawyer pointed out the error to Mr Kamal, but Mr Kamal still refused to call the meeting. He did not later allege that the notice was out of time but claimed instead that the cost of the meeting was not justified.[90] I accept Mr Smith's submission that the decision does not record Mr Kamal's acknowledgment of the error in his conduct (on the basis of legal advice) and that he would not make that mistake again. The panel should have identified that acknowledgement and included it in its assessment.Acknowledgements and corrective steps regarding late filings[91] The decision records that Mr Kamal had a pervasive record of non-compliance with his reporting obligations under the Companies Act. The decision notes that while Mr Kamal had made commitments to Mr Williams and RITANZ to comply with these obligations, he had continued to breach the legislative timeframes (and on occasion had diverted blame to his staff for either providing a misleading commitment or failing to comply with the commitment. This aspect is subject to a separate complaint by Mr Kamal which I address later in the judgment). Mr Kamal complains that the panel did not identify or assess the significance of his acknowledgements and the corrective steps he had taken.[92] First, I note that the observations above as to non-compliance are supported by a table contained in Mr Williams' report of breaches of six-monthly reporting deadlines. There are 35 breaches in the table over a period from 19 December 2017 to 12 May 2020 with the average number of days late being 96 days. Mr Williams adds a note in his report saying that although Mr Kamal acknowledged the accuracy of the table, he had assured Mr Williams and had produced evidence in support of those assurances, that his practice had taken corrective measures and was now fully compliant with appropriate monitoring systems in place. That statement by44 Stojkov v Kamal, above n 27, at [9].Mr Williams is reflected in Mr Kamal's second statement in support of his application and he adds that he now has a dedicated staff member consistently attending to monitoring on a monthly basis. He repeats this in his third statement.[93] In its letter of 20 October 2020 to Mr Kamal, the panel noted his response to Mr Williams regarding non-compliance with filing dates in which Mr Kamal had said he "confirm[ed] that reports will strictly be filed on time in the future. Further, I note that I have changed my processes and procedures to make sure that 6 monthly reports are filed on time". The letter from the panel notes that Mr Kamal's confirmation must have been as at 17 August 2020 (the date of Mr Williams' report). The letter went on to refer to seven reports which were filed late on dates from 19 August 2020.[94] The panel asked if Mr Kamal accepted that this confirmation he made and referred to in Mr Williams' report was incorrect at the time it was made and afterwards. The panel also noted Mr Kamal's statement of 30 September 2020 in which he stated that "I confirm that my practice has taken corrective measures this year to prevent this past problem from recurring". In the letter the panel noted that as at the date of that confirmation at least three of the seven reports identified were not filed on their due date. The panel asked Mr Kamal if he accepted that his confirmation was incorrect and also asked what corrective measures had been taken and why they failed in that instance.[95] Mr Kamal responded in relation to the confirmation in Mr Williams' report that it was incorrect at the time he provided it and afterwards but not to his knowledge. He said at the relevant time an employee, whom he named, was responsible for the monitoring of reports and filing dates. Mr Kamal said he checked with the employee prior to making the confirmation and the employee confirmed to Mr Kamal that all the reports were up to date. Mr Kamal said he relied on that advice to make the confirmation he did.[96] First, the decision cannot be criticised for describing the non-compliance as pervasive. Second, having regard to the failure of the corrective measures referred to above the criticism Mr Kamal makes is not warranted.Material prepared subsequent to 2020 NZICA decision addressing matters in that decision[97] Mr Smith refers to a memorandum that Mr Kamal prepared, dated 26 June 2020, to NZICA requesting that it reconsider the 2020 NZICA decision. The Disciplinary Tribunal declined to reconsider its decision on the basis that it was functus officio. Mr Smith submits that the decision under review does not refer to, or assess the significance of Mr Kamal's response to the 2020 NZICA decision. In his memorandum, Mr Kamal raises three issues with the 2020 NZICA decision. First, he says it criticised him for not providing clear and adequate evidence of his financial position and livelihood, but the Disciplinary Tribunal did not offer him an opportunity to provide evidence to address its concerns. Had it done so, he would have provided financial information which he summarises in an appendix to his memorandum.[98] Second, he refers to the Disciplinary Tribunal's adverse assessment of his demeanour and suggests that was a reasonably significant factor for the Disciplinary Tribunal in its decision. He says the decision was not fair in its reliance on his demeanour without telling him what exactly it was about his demeanour that the Disciplinary Tribunal found troubling. He notes that the Disciplinary Tribunal does not record in the decision that relatively early on in his evidence there was a significant earthquake in Wellington which unnerved him and which he suspects had an impact on how he presented; there were issues with Zoom freezing while he was giving evidence; and along with English not being his mother language, that all impacted on how he presented. He goes on to note that the hearing was only a few days after the lifting of COVID-19 restrictions which had significantly impacted on his wellbeing because of the stresses arising out of the downturn in his business. Finally, he had just finished Ramadan (a Muslim holy month of fasting) the day before and he was exhausted and had not mentally recovered.[99] The third matter is a response to the Disciplinary Tribunal's criticism of his reliance on letters in support from his long-standing counsellor. He says the decision does not record that he offered, through his then solicitor, to commission a report from an independent psychiatrist or psychologist.[100] In his memorandum Mr Kamal says that he was given a fair opportunity to identify to the Disciplinary Tribunal any ethics courses he had completed between 2014 and December 2019. He says what he had not remembered at the time was that he had completed an ethics course in September 2014 and other CPA seminars. He attaches documents which confirm his attendance. He suggests that they address the concern the Disciplinary Tribunal voiced that the first ethics course he attended was only after the Disciplinary Tribunal's December 2019 decision raising this issue.[101] I accept Mr Smith's submission that the decision does not record Mr Kamal's response to the 2020 NZICA decision. While it is not necessary for a decision-maker to refer to every item of evidence before it, in this case Mr Kamal's responses to the 2020 NZICA decision should have been assessed, alongside the 2020 NZICA decision itself.References[102] Mr Smith submits that in considering references the decision does not identify or assess the significance of trust roles.[103] I do not accept this criticism. The decision states:4.43 Mr Kamal provided a number of references in support of his good character. There is support in the references for Mr Kamal's character as a family man. His references show a positive involvement in his community including youth mentoring, fundraising, physical work, support of migrant and refugee families, pro bono accounting work for community members, his repeated election to committees of Muslim organisations in Wellington and his position as treasurer and trustee on various associated organisations.(emphasis added)[104] Then in the assessment section of the decision the panel refers to Mr Kamal's references being supportive of his community participation. That participation includes his treasurer/trustee roles.Bryan Williams' report[105] Mr Kamal makes two complaints regarding the treatment of Bryan Williams' report in the decision. First, he says that the decision does not identify or assess Mr Williams' complete fitness to practice conclusion.[106] The decision sets out the first part of Mr Williams' conclusion as follows:4.36 Mr Williams' overall conclusion was that Mr Kamal was "genuinely endeavouring to provide a service that is valuable to the community and in respect of which he has an entitlement to be paid. Nothing that I have seen suggests that the standard, or any fitness standard for that matter, is flagrantly disregarded."(emphasis in original)[107] Mr Kamal complains that the following two paragraphs from Mr Williams' report were overlooked. They read:There are however shortcomings and practices that will need to be addressed within the mentoring process. Fortunately, Mr Kamal has adamantly and genuinely agreed to face any findings I may have and, as a result, submit to a process of mentoring that would see such matters addressed. If there is an adherence to the mentoring process, there is no reason to assume that fitness to practice will be a problem.Accordingly, it is my recommendation that mentoring practice is commenced with a series of six-monthly reports provided to the Committee that monitors activity.[108] Mr Kamal had proposed in his statement filed with his application that his accreditation as an insolvency practitioner be conditional on the six-monthly reports recommended by Mr Williams (as well as three matters specified by Ms Lomas which I will address later in this decision). I have already found that the statutory regime does not contemplate licences with bespoke or individual-specific conditions to allow an application to pass through the "fit and proper" gateway. It was accordingly not an error for the panel not to record and to consider Mr Williams' recommendation in the decision.[109] The second criticism that Mr Kamal makes in relation to the treatment of Mr Williams' report in the decision is the reference to Mr Williams' statement that he did not select the files to be reviewed himself despite that being a requirement recordedin correspondence between Mr Williams and Mr Kamal and accordingly that the panel was unable to determine whether Mr Williams reviewed a representative or random sample of Mr Kamal's files. The complaint is that in making that statement the panel did not engage with evidence Mr Kamal provided regarding file selection. In his second statement Mr Kamal said that the files were randomly collated by his manager with no input from him. There is a letter from a person who describes himself as a senior insolvency manager on the letterhead of Liquidation Management Ltd stating that he collated the files with no input from Mr Kamal and the files were randomly collated.[110] I accept there is a basis for Mr Kamal's complaint that the panel, in saying that it was "unable to determine therefore whether Mr Williams reviewed a representative or random sample of Mr Kamal's files", did not refer to evidence that the files were randomly selected. However, the statement complained of was not part of the panel's good character assessment. The decision contains the following:4.35 In August 2020, following a recommendation made by NZICA, Bryan Williams, a licensed insolvency practitioner and a mentor for Mr Kamal, submitted a report to the CAANZ Professional Conduct Committee. Mr Williams' report was a peer review of 5 completed and 10 open liquidation matters for Mr Kamal's appointments. The focus of the review was not the "good character" assessment that is before the Panel, but Mr Kamal submitted this to RITANZ and there were some factual conclusions relevant to that assessment in the report.4.36 Mr Williams' overall conclusion was that Mr Kamal was "genuinely endeavouring to provide a service that is valuable to the community and in respect of which he has an entitlement to be paid. Nothing that I have seen suggests that the standard, or any fitness standard for that matter, is flagrantly disregarded."4.37 While we acknowledge that Mr Williams' report provides a generally favourable view of Mr Kamal's practices and procedures, we note that Mr Williams recorded that he did not select the files to be reviewed himself, despite that being a requirement recorded in correspondence. We are unable to determine therefore whether Mr Williams reviewed a representative or random sample of Mr Kamal's files. Mr Williams' report also identified some issues of concern for the "good character" question before this Panel (emphasis added)[111] As can be seen the reference to file selection in the quoted part of the decision precedes the "good character" matters the panel then went on to draw from Mr Williams' report.[112] I therefore do not accept the second complaint Mr Kamal makes regarding the treatment of Mr Williams' report in the decision.Failure to consider rehabilitative steps prior to August 2020[113] The report of Ms Lomas was discussed in the assessment part of the decision as follows:5.9 The evidence before us from Dr Lomas goes some way to explaining the mental health challenges that Mr Kamal may face. We accept that Dr Lomas' conclusions that Mr Kamal was able to "openly discuss his beliefs around the wrong-doing of his behaviour", and that before her he was able to identify some drivers of his criminal offending and that he has some insight (in her words) into his offending. We take this into account as part of our forward-looking assessment about whether Mr Kamal meets the necessary standard of "good character" under the Rules now. We note that this progress is relatively recent, in August 2020, and arose after applications to NZICA results in negative recommendations.[114] Mr Smith submits that this approach ignores rehabilitative steps taken by Mr Kamal between the tax offending and his application. He refers to the evidence of Mr Kamal having sought counselling, Mr Kamal's growth in his understanding about his mental health and behavioural characteristics and his undertaking his Hajj, which is of deep spiritual significance to Mr Kamal as a practising Muslim. In that regard, Mr Smith notes that the decision does not refer to the part of Ms Lomas' report describing her discussion with the Imam who provided a reference for Mr Kamal. Ms Lomas said the Imam considered Mr Kamal to be honest in his recognition of his wrong-doing and that Mr Kamal was clear with the Imam that he did not wish to cross such boundaries again.[115] However while the decision does not mention those rehabilitative steps, it is clear on an overall reading of Ms Lomas' report that she considers Mr Kamal still has some work to do. For example, she refers to Mr Kamal having "some" insight into his offending. She says Mr Kamal would "like to" work successfully and honestly inhis current business endeavours "and to do that he understands he needs to undertake a number of changes in the way he works and how he views the world." She then makes three recommendations: that Mr Kamal would need to develop an open and honest contract with his mentor, Mr Williams, including Mr Kamal's complete disclosure to Mr Williams of his past convictions; that Mr Kamal would openly discuss his work process and seek ethical dialogue in his work practices with his mentor and that this would include allowing his mentor to choose at random, files he would review and that Mr Kamal would benefit from clinical input from an experienced therapist.[116] Ms Lomas does not therefore give Mr Kamal a clean bill of health on the good character assessment. It is also clear that her report envisages that conditions in the form of her recommendations would be attached to a licence to enable Mr Kamal to satisfy the "fit and proper" test.[117] For all the above reasons I do not uphold Mr Kamal's complaint about the panel's treatment of Ms Lomas' report.[118] In summary, on this ground, I find that the panel did not refer to and assess the significance of the following matters in making its good character assessment. It should have done so:(a) Mitigating features of the tax offending identified in the District Court Judge's sentencing decision (at [87] above);(b) Mr Kamal's acknowledgment of his error in his conduct referred to by Associate Judge Bell and Mr Kamal's acknowledgment that he would not make that same mistake again (at [90] above); and(c) Mr Kamal's responses to the 2020 NZICA decision (at [101] above).Ground 4 – alleged mistakes/errors of fact and procedural unfairness: making findings that are unjustified and unfair[119] Mr Smith submits that RITANZ's approach to factual findings demonstrates an unfair approach to evidence. He says whether analysed as breaches of natural justice or material factual error, RITANZ has taken an approach that ignores Mr Kamal's explanations, fails to put serious adverse matters to him, and criticises him for identifying matters that relevantly bear on character and forward-looking risk.[120] This ground is based on three factual findings made in the decision that Mr Kamal says were wrong and/or made in breach of natural justice.[121] The first of the findings that Mr Smith submits was wrong and/or made in breach of natural justice was the finding that Mr Kamal misled the public by implying he had more than one lawyer working for him.[122] In the decision after referring to the "false references" on NZDS's website that NZDS had a registered liquidator or licenced liquidator, the decision then states:4.20 The Panel raised concerns about other language that could be misleading on the website with Mr Kamal, including:(a) Questions about who the actual personnel involved were;(b) Whether and the extent to which the business has actual in- house legal counsel;(c) Representations about the relative cost of the business' services.4.21 These matters were put to Mr Kamal and discussed in the written exchanges. Mr Kamal implied in a response to us that he had employed more than one lawyer, when in fact he had only ever employed one solicitor. The response was itself misleading with the true position only identified when we asked a further question as to the identities of the other lawyers employed.[123] At the time of Mr Kamal's application his website referred to having "in-house legal capabilities". In a letter dated 20 October 2020, RITANZ asked:Who provides your in-house legal capability? Are they lawyers and, if so, please identify the individuals and when they were employed by you.[124] Mr Kamal responded to this question in his third statement saying:Most recently, I had a solicitor, [Ms AB] working for my practise [sic]. She was employed by me from March to July 2020. Since [Ms AB's] employment ceased, I do not have any solicitor working for my practise [sic], and in the present circumstances being realistic that is not likely to change at least in the short term. On that basis, I will remove this website content as soon as I can.(emphasis added)[125] I agree with the submission of Mr Hunter QC for RITANZ that the use of the words "most recently" implied that Mr Kamal had employed a solicitor(s) before [Ms AB]. It was reasonable for the panel to consider Mr Kamal's response was misleading.[126] This question was asked by the panel in the context of its inquiries to establish whether any other statements made on the website had the potential to mislead (having identified misrepresentations on other issues on the website). It must have been clear to Mr Kamal that it was important to provide a clear and unambiguous clarification to the panel. It should have been in the front of his mind.[127] Mr Smith submits that Mr Kamal had made it clear in his first statement accompanying his application that he took legal advice from three external sources. That is beside the point on this issue. The panel was concerned to ensure that the website contents were accurate in relation to in-house legal capability. The panel put a clear question to Mr Kamal and his response was misleading.[128] Mr Smith further submits that even assuming Mr Kamal may have implied he employed more than one solicitor in-house, it is unclear why this incorrect implication would be misleading to the public when Mr Kamal had told RITANZ that he regularly worked with two experienced Wellington barristers as well as Mr Norling, at Norling Law, a specialist insolvency law firm in Auckland. However, the focus of the panel's decision on this issue was on "reckless" or "careless" behaviour, which must be relevant in making a good character assessment. After setting out its concerns in 4.20 and 4.21 of the decision (as repeated at [122] above) the panel said:4.22 The Panel considers that, while individually these matters are of lesser weight than the matters referred to in paragraphs 4.14 and 4.18 above [statements on the NZDS website referring to there being a "registered New Zealand liquidator" and "registered liquidators" at NZDS], they are relevant to the question of "good character" as evidence of a pattern of behaviour whereby Mr Kamal has acted recklessly or carelessly when making representations about his business.[129] There was no unfairness in the process. The panel went back to Mr Kamal and asked relevant questions. They referred to his answers. Nor were there errors of fact on this issue.[130] The second finding that Mr Kamal complains about under this ground is the finding that he would not have sought regulatory approval for the form of any future arrangement with David Thomas, an accredited and licensed insolvency practitioner. The background is summarised in the decision as follows:4.25 RITANZ became aware, in 2020, of a draft deed of arrangement for taking of appointments sent to David Thomas, an accredited insolvency practitioner, and, now, licensed insolvency practitioner, of Tauranga.4.26 The draft deed states that the Appointer (Mr Kamal and/or Liquidation Management Limited) is unable to take appointments as an insolvency practitioner from 1 September 2020 and that the Appointer intends to remedy this situation, but requires an insolvency practitioner to take appointments in the interim period. On its face, the content of the draft deed appears to circumvent the requirement under IPRA that the appointee be licensed.4.27 The draft deed reserved to the Appointer numerous significant rights and powers held by the office of the liquidator.[131] The decision sets out some of the questions the panel asked Mr Kamal about the draft deed and Mr Kamal's responses. An example of one of Mr Kamal's responses is contained in his fourth statement as follows:9. As I explained in my Second Statement (paragraph 33), the proposed deed was drafted by my lawyer Brent Norling. It was not intended for final use. It was intended to be used to have a conversation; for discussion purposes. The intention was that, if that conversation progressed, which it could only do if there was interest in exploring the proposal, detailed consideration would have been given to the draft terms, including to ensure that all parties were happy that they complied with all legal requirements – which would sensibly have involved all parties seeking regulatory confirmation of that. Thatconsideration was not necessary, as the proposed discussions did not progress.[132] The panel drew a number of inferences from the correspondence between Mr Kamal and Mr Thomas and concluded this section of the decision saying:4.34 Mr Kamal has not satisfied us that he would have sought regulatory approval for the form of the agreement. It is concerning to us that Mr Kamal was comfortable enough with the draft deed to propose it to Mr Thomas despite its apparent inconsistency with the regulatory regime, which should have been apparent to such an experienced practitioner. Mr Kamal demonstrated an unwillingness to engage with us on the ethical issues which were evident in the draft deed. He did not appear to us to be willing to take responsibility for the content of the draft deed.[133] Mr Hunter submits that the panel assessed all material before it, that it was not proceeding on a mistaken fact and instead drew appropriate and reasonable inferences based on the evidence in front of it.[134] That may well be the case for the part of paragraph 4.34 not complained of. But it is the first sentence that concerns Mr Kamal. Although he was asked a good number of questions about the draft deed, he was not asked if the arrangement had proceeded from a first draft, whether he would have sought approval from either RITANZ or NZICA. In one of his statements Mr Kamal stated that he would have sought regulatory approval for the draft deed.[135] Mr Kamal asserts that RITANZ found that he lied. I do not consider the first sentence in paragraph 4.34 goes that far. Nevertheless RITANZ made the finding in the face of a clear statement from Mr Kamal that he would have sought regulatory approval. One of the pieces of evidence that the panel relied on was Mr Kamal's email to Mr Thomas (who had said what was proposed was "not in the spirit of the law"). Mr Kamal responded saying "I'm counting on you mate. I sent you the draft agreement. It's only for a [few] weeks or months".[136] Notwithstanding the email, I accept Mr Smith's submission that the finding is unfair in circumstances where RITANZ did not directly ask Mr Kamal the relevant question. Not all findings are of equal importance. But this finding engaged ethical issues. The panel considered the draft deed was inconsistent with the regulatoryregime. It was an important finding as a consequence. In circumstances where the panel had a statement from Mr Kamal saying that he would have sought regulatory approval for the arrangement, it needed to question him further before making the finding it did. I accept that a hearing in person would have meant that follow up questions could have been more easily asked and that the panel could have made a credibility assessment. But nevertheless further questions did need to be asked and answered before any such finding could be made.[137] The third finding Mr Kamal takes issue with is the finding that he was not willing to take responsibility for behaviour, including false statements on the website, the late filings referred to in Mr Williams' report and the draft deed sent Mr Thomas.[138] In the decision is the following paragraph:5.11 While Mr Kamal has acknowledged much of his wrong-doing, he has not demonstrated to our satisfaction that he engages meaningfully with misleading behaviour, is prepared to take responsibility for that behaviour and that such behaviour is not likely to recur. Mr Kamal has in several circumstances deflected blame to others on matters that are his responsibility, for example, the false statements on the website, the late filings referred to in the Williams report, and the draft deed sent to Mr Thomas.[139] Mr Smith submits Mr Kamal's responses were not an attempt on the part of Mr Kamal to deflect blame. First, in relation to the false statements on the website, he says that while Mr Kamal referred to actions of the former owner of the website (David Hill) those responses must be read fairly and in context. He submits that they do not show Mr Kamal deflecting blame to avoid taking responsibility for problematic website content. But Mr Smith says to the contrary they show him contextualising issues for which he took responsibility.[140] What Mr Kamal said in his second statement was this:I purchased NZ Debt Solvers Ltd (website only and intellectual property) from David Hill in July 2017, the company being formed in anticipation of the purchase a few months prior. The original website was running for several years. My recollection is that the content that RITANZ raised concernsabout45 was present when I purchased the website. I responded and undertook to remove objectionable content, which I did.[141] However while Mr Smith's submission might have had some weight if the issues with the website were only those raised by RITANZ with Mr Kamal in 2017, there was still content on the website which concerned RITANZ at the time of Mr Kamal's application to RITANZ. There were references to "Registered New Zealand Liquidator" and "registered liquidators" on the site such as:(a) Reference to "appointing a licensed liquidator (which must be registered) like Debt Solvers";(b) "Working with a registered, experienced Debt Solvers' liquidator can help you find a quick and easy solution"; and(c) As a "key promises to our customers we use a Registered New Zealand Liquidator for all work".[142] In my view, by that stage matters had moved well past the time for a contextual explanation that the content had been created by another and that the content was on the website at the time Mr Kamal purchased it. Mr Kamal says that he was prepared to remove offending content identified by RITANZ. But he should not have needed RITANZ to point out the offending content that was still present in 2020. I do not consider that the observation in the decision that Mr Kamal blamed others in respect of this point was either unlawful, unfair or contrary to the evidence.[143] The statement made in the decision was in the assessment section of the report. I do not consider the panel was required to inform Mr Kamal on how it would assess every matter that was put to him for comment. The conclusion was based on an assessment of the facts and material provided to the panel.[144] I turn to the submission that the statement in the decision that Mr Kamal on occasion had diverted blame to his staff for either providing a misleading commitment,45 In 2017 regarding the presence of the RITANZ word and logo and the statement "our registered liquidator is a member of Restructuring Insolvency & Turnaround Association of New Zealand".or failing to comply with the commitment, and that was unlawful, unfair and contrary to the evidence. Mr Smith submits that Mr Kamal did not blame staff members for some late filings. He says Mr Kamal acknowledged that in the case of some late filings he had initially trusted a staff member's assurances that filings had been made on time, but when he realised that was not correct, he promptly took steps to ensure the filing had been made and to avoid the risk of a late filing in future. Mr Smith submits the statements regarding staff members provide context for Mr Kamal's explanations. He says that where there was a late filing for which he was responsible directly, Mr Kamal acknowledged that up front.[145] The detail relevant to this submissions is set out at [92] to [95] above. On the basis of that evidence I do not consider it can be said that the finding was unlawful, unfair and contrary to the evidence. There is evidential support for the statement.[146] Finally there is the complaint about the finding that Mr Kamal had deflected blame in relation to the draft deed sent to Mr Thomas. Mr Kamal explained to RITANZ that Mr Norling prepared the draft deed. However it was open on the evidence for the panel to find, as it did that it was concerning to the panel that Mr Kamal was comfortable enough with the draft deed to propose it to Mr Thomas despite its apparent inconsistency with the regulatory regime, which should have been apparent to such an experienced practitioner. The evidence and inferences that supported that conclusion were:(a) Mr Kamal forwarded the draft deed to Mr Thomas on the eve of insolvency practitioner regulations coming into force;(b) Mr Kamal was essentially seeking to practice as an insolvency practitioner in a manner inconsistent with the new regulatory environment, and despite his lack of approval to act as an insolvency practitioner;(c) Mr Kamal pursued this opportunity with Mr Thomas after being told that Mr Thomas could not help; and(d) Mr Kamal, after receiving Mr Thomas' written views, including that what was being proposed was "not in the spirit of the law" urged Mr Thomas to agree with the arrangement, saying: "I'm counting on you mate. I sent you the draft agreement. It's only for a [few] weeks or months".[147] While the evidence was that Mr Norling prepared the draft deed, having regard to the evidence above, it cannot be said that the panel's findings about Mr Kamal not accepting responsibility on this issue was unlawful, unfair or contrary to the evidence.[148] In summary on ground 4, I uphold Mr Kamal's challenge only in relation to the finding by the panel that Mr Kamal had not satisfied the panel he would have sought regulatory approval for an arrangement between himself and Mr Thomas. This was unfair and was a breach of natural justice.Ground 5 – alleged unreasonableness[149] In making his submissions on unreasonableness, Mr Kamal adopts the approach of Palmer J in Hu v Immigration and Protection Tribunal:46 a decision which is so untenable in light of, or is clearly contradicted by, the evidence can be treated as having been made in error of law (i.e. it is unreasonable in all the circumstances).[150] Mr Smith repeats all of the submissions already made. I have found in his favour on a very limited basis as referred to in [118] and [148] above. In particular Mr Smith repeats the submission that an experienced liquidator considered that Mr Kamal met the necessary character standard, with supervision and he was willing to mentor and provide him with that supervision. Mr Smith submits with "a conditional approval" from NZICA, Mr Kamal met the standard required.[151] Therein is the problem for Mr Kamal with this ground of review. Mr Kamal had proposed that his licence to be issued by NZICA would be subject to conditions to ensure that he passed the "fit and proper" person test. I have held that the Act does not provide for licences to be issued with conditions for this purpose. Regardless of46 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [29].any errors such as I have found, a licence could never issue with these conditions. On this basis alone it cannot be said the decision was unreasonable in the sense claimed.Further evidence[152] At the hearing Mr Hunter sought to file an affidavit from a solicitor from the firm of the solicitors which acts for RITANZ sworn the day before the hearing. The affidavit states that on 25 May 2021 the solicitor could access the websites of Liquidation Management and NZDS using links set out in the affidavit. The affidavit annexes a page from the Liquidation Management website and two pages from the NZDS website. In the former, there is the statement "In-house legal" and in the latter a statement "We use a Registered New Zealand Liquidator for all work".[153] Mr Smith objected to the filing of the affidavit but said if the Court was minded to receive it, he wished to have the opportunity for Mr Kamal to respond. I indicated I would receive both affidavits and determine their admissibility as part of this judgment.[154] Mr Kamal subsequently filed an affidavit in response. He says that following the commitments he gave to RITANZ in 2020 in the course of its consideration of his membership application, on 3 November 2020 he instructed a web developer to update both websites by removing a reference to "In-house legal" and to "Registered" Liquidators, renaming it as Liquidators only. Mr Kamal annexes email correspondence with the web developer recording his instructions and responses by the web developer confirming that the changes had been made. Mr Kamal says he checked the Liquidation Management website home page and it showed that the changes he had requested had been made. He did not realise that there was another linking page that retained the wording.[155] He says for the NZDS website changes he relied on the web developer's assurance that the changes had been made without verifying that himself. He says on the same day he received the affidavit on behalf of RITANZ, he instructed a web developer to remove the inappropriate text which he understands was done on the same day. He says he has subsequently checked the websites and the inappropriate text has been removed.[156] I will not admit either of the affidavits in this proceeding. The evidence has arisen subsequent to the hearing and is therefore not relevant to the application for review. It was not material considered by the panel.Relief[157] Mr Kamal seeks relief by way of declarations that the decision was unlawful for any one or more of the grounds relied upon and an order quashing or setting aside the decision.[158] Relief in judicial review is discretionary but the presumption is relief will be granted where a reviewable error has been established. 47 Mr Smith submits there is no basis for not granting relief in the terms sought.[159] I accept that submission only in relation to the making of a declaration regarding the errors I have found. I take a different view in relation to the quashing or setting aside of the decision because of those errors.[160] Mr Kamal made it clear, both in the hearing before the panel and in this Court, that he would be seeking a licence from NZICA on the basis that the licence would have conditions attached to it. Those conditions were the three matters specified by Ms Lomas (at [115] above) and that there be six monthly reports as recommended by Mr Williams. I have determined that the Act does not enable an applicant to satisfy the "fit and proper" person test on the basis of conditions attached to a licence. A person is either a "fit and proper" person or they are not. Therefore, NZICA could never grant a licence to Mr Kamal as he proposes.[161] Mr Kamal also made it clear that his application for membership of RITANZ was not an end in itself. But rather he sees it as the first step in the process towards applying to NZICA for, as he puts it, a conditional licence. However although he did not seek membership of RITANZ for other reasons, it is conceivable that there might be some benefits to him in such membership. I therefore considered whether the Court47 Middeldorp v Avondale Jockey Club Inc [2020] NZCA 13 at [43].should quash the decision because of the errors I have found, even though Mr Kamal's ultimate goal would never be achievable, on the basis on which he seeks it.[162] But there is the same problem for Mr Kamal in relation to his application to RITANZ for membership. In order to become a member he needs to satisfy the "good character" test under the RITANZ rules. For the purposes of his application to NZICA he accepts that he cannot satisfy the "fit and proper" person test in the Act without conditions. The same consideration must apply to the "good character" test in the RITANZ rules. Regardless of the errors I have found, if I were to quash the decision and send it back to the panel for reconsideration, his application for membership of RITANZ founded on passing the "good character" test because of conditions, could not be granted. Therefore despite the errors I have found I do not quash the decision.[163] But I formally make a declaration in the following terms:(a) The panel erred in law in its decision by not referring to and assessing the significance of the following matters in making its "good character" assessment in a forward-looking way;(i) Mitigating features of the tax offending identified in the District Court Judge's sentencing decision;(ii) Mr Kamal's acknowledgment of his error in his conduct referred to by Associate Judge Bell and Mr Kamal's acknowledgment that he would not make that same mistake again;(iii) Mr Kamal's responses to the 2020 NZICA decision; and(b) The panel erred in stating that Mr Kamal had not satisfied the panel that he would have sought regulatory approval for an arrangement between himself and Mr Thomas. The finding was unfair and was a breach of natural justice.Costs[164] Mr Kamal has achieved limited success. He has failed on his main argument that the Act contemplates that licences may be issued with bespoke or individual- specific conditions imposed to satisfy the "fit and proper" person test. However, I have accepted that there were some errors in the decision under review and I have made a declaration to that effect. But I have not quashed the decision. Mr Kamal is, prima facie, entitled to costs. However, I did not hear from the parties on costs and I reserve costs.[165] If the parties can reach agreement on costs, a joint memorandum should be filed within 20 working days of the date of this judgment. If costs cannot be agreed, Mr Kamal is to file and serve his costs memorandum within five working days of the date for the joint memorandum. RITANZ is to file and serve its memorandum within five working days of receipt of Mr Kamal's memorandum. Memoranda should not exceed five pages. I will determine costs on the papers.___________________________________Gordon J