KAMAL v RESTRUCTURING INSOLVENCY AND TURNAROUND ASSOCIATION OF NEW ZEALAND INCORPORATED [2021] NZCA 514

KAMAL v RESTRUCTURING INSOLVENCY AND TURNAROUND ASSOCIATION OF NEW ZEALANDINCORPORATED [2021] NZCA 514 [30 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA414/2021[2021] NZCA 514BETWEEN IMRAN MOHAMMED KAMALAppellantAND RESTRUCTURING INSOLVENCY ANDTURNAROUND ASSOCIATION OFNEW ZEALAND INCORPORATEDRespondentHearing: 25 August 2021Court: French, Mander and Palmer JJCounsel: M S Smith for AppellantS M Hunter QC and E B Moran for RespondentJudgment: 30 August 2021 at 2.00 pmReasons: 7 October 2021JUDGMENT OF THE COURTA The appeal is dismissed.B The cross-appeal is upheld and the declarations of the High Court arequashed.C Costs are awarded to the respondent for a standard appeal on a band Abasis for the appeal and cross-appeal, and reasonable disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)Summary[1] Mr Imran Kamal was subject to disciplinary sanctions by the New ZealandInstitute of Chartered Accountants (NZICA) in 2009, 2010, and 2011 and wasconvicted of six criminal tax offences in 2013. He would have been removed frommembership of NZICA if he had not resigned. In 2013, Mr Kamal started practisingas a liquidator. In 2015, the High Court ordered him to pay costs personally becauseof his conduct in a liquidation.1 Now, the Insolvency Practitioners Regulation Act2019 (the Act) effectively requires that Mr Kamal either be a member of NZICA or ofthe Restructuring Insolvency and Turnaround Association of New Zealand (RITANZ)to continue to practise as a liquidator. In 2020, NZICA declined his application forreadmission to membership. In 2021, RITANZ declined Mr Kamal's application formembership on the basis he was not of good character.2 Mr Kamal challenged thedecision by judicial review. The High Court upheld RITANZ's decision.3 But it issuedtwo declarations: that RITANZ erred in law by not making its good characterassessment in a forward-looking way in three respects and that a statement in its reportabout Mr Kamal was not put to him so was unfair and a breach of natural justice.[2] Mr Kamal appeals the High Court's decision to uphold RITANZ's decision. Hesubmits that the Act contemplates that an applicant for a licence can meet the fit andproper standard with appropriate conditions imposed and RITANZ's decision did nottake that into account. RITANZ appeals the High Court's decision to grant the twodeclarations on the basis that no errors of law were established and, even if they were,declarations would not change the outcome. On 30 August 2021, we issued a resultsjudgment dismissing the appeal.4 This judgment explains our reasons for dismissingthe appeal and sets out our decisions on the cross-appeal and costs.[3] We hold that the conditions which can be imposed on licences issued under theAct do not mitigate the requirement that all licensees meet the statutory fit and proper1 Stojkov v Kamal [2015] NZHC 2513.2 Application for membership of RITANZ: Imran Mohammed Kamal, Notice of decision andreasons, 19 February 2021 [RITANZ decision].3 Kamal v Restructuring Insolvency and Turnaround Association of New Zealand Inc [2021] NZHC1626 [High Court decision].4 Kamal v Restructuring Insolvency and Turnaround Association of New Zealand Inc [2021] NZCA418.standard. That is so whether they are applicants under either of the alternativestatutory routes of being a member of NZICA or of RITANZ. Parliament's purpose insubjecting all licensees to the fit and proper standard was to maintain minimumstandards related to expertise, skills and character whichever route is pursued. Therewas more than enough evidence on which RITANZ was entitled to decide Mr Kamal'sapplication did not meet the good character requirement, just as it did not meet thestandard for NZICA membership. Accordingly, the appeal fails. We uphold thecross-appeal, because we do not consider any of the issues raised were errors of law.What happened?[4] We gratefully rely on Gordon J's comprehensive account of the facts in herjudgment of 2 July 2021.Mr Kamal and NZICA[5] Mr Kamal is a former chartered accountant. He was a member of NZICA for11 years, until 2012, and attracted nine complaints. Three of them led to disciplinarysanctions being imposed on him in 2009, 2010 and 2011 for: lack of technicalcompetence in undertaking audit, insolvency and taxation engagements; providingservices without being instructed, making offensive comments, and not releasing filesin a timely manner; and breaching the relevant Code of Ethics while falling just shortof conduct unbecoming of an accountant.[6] In 2013 Mr Kamal was convicted of six offences of providing false andmisleading information to the Commissioner of Inland Revenue with the intent tounlawfully obtain GST and income tax refunds of $55,737.50 in 2006 and 2007. Hewas sentenced to three months' home detention and 150 hours of community service.5Judge D R W Barry stated that:6At the cold, hard kernel of this offending is the fact that he agreed that invoicesfor services that were never rendered would be passed to the Commissionerand the reason for doing that was to derive financial benefit from evadinglegitimate tax payments.5 Inland Revenue Department v Kamal DC Wellington CRI-2012-085-8280, 15 February 2013.6 At [27].[7] Mr Kamal was initially granted name suppression, but that was revoked by theHigh Court on the basis his evidence could not be relied upon.7[8] Mr Kamal resigned from NZICA in 2012, before being sentenced. An NZICADisciplinary Tribunal considered a charge that his fitness to practise accountancy hadbeen adversely affected and he had brought the accounting profession into disrepute.Mr Kamal accepted the charge. In June 2014, the Tribunal found that it would haveremoved him from membership if he had not resigned.8[9] From 2013, Mr Kamal practised as a liquidator with a staff of around five,undertaking mostly small liquidations in Wellington. He is the sole director andmajority shareholder of his company, Liquidation Management Ltd. He encountereddifficulties in this role too. In 2015, Associate Judge Bell ordered costs of $5,446against Mr Kamal personally on the basis his conduct as liquidator was unreasonableand out of the ordinary.9The law regulating insolvency practitioners[10] The Act was passed in June 2019. Section 3 states:The purpose of this Act is to regulate insolvency practitioners and to establishan independent oversight system in order to promote—(a) quality, expertise, and integrity in the profession of insolvencypractitioners; and(b) compliance with the statutory duties of insolvency practitioners.[11] Section 8 requires an insolvency practitioner to hold a licence. Section 9provides that a natural person may apply to an accredited body for a licence. The onlycurrently accredited body is the NZICA. Section 9(2) requires the accredited body toissue a licence to the applicant if:(a) the accredited body is satisfied that the person—(i) meets the prescribed minimum standards; and7 K v Inland Revenue Department [2013] NZHC 2426, (2013) 26 NZTC 21-034; andInland Revenue Department v Kamal [2013] NZHC 3474 at [12]–[13] and [31].8 Re Kamal Determination of the Disciplinary Tribunal of the New Zealand Institute of CharteredAccountants, 9 June 2014 at 3.9 Stojkov v Kamal, above n 1, at [11]–[12].(ii) is otherwise a fit and proper person to hold a licence; and(c) either—(i) the person is a member of the accredited body; or(ii) section 57 applies in respect of the person.[12] The fit and proper standard has been the subject of case law. Most relevantly:(a) In 2016, in Carroll v Law Society of Ireland, the Supreme Court ofIreland considered the fit and proper standard in relation to solicitors:10In broad terms, "fitness", which covers the necessaryacademic qualifications and practical experience, also relatesto matters such as knowledge, skill, understanding, expertise,competence and the like, all of which impact on one'scapacity to appropriately discharge the obligations which thepractice of his profession imposes. The second aspect of theterm 'being a proper person' is much more directly related tocharacter and suitability. Critical in this respect are matterssuch as honesty, integrity and trustworthiness: a person ofprincipled standards, of honest nature and of ethicaldisposition; a person who understands, appreciates and takesseriously his responsibilities to the public, to theadministration of justice, to individual colleagues and to theprofession as a whole.(b) In 2020, in New Zealand Law Society v Stanley, a majority of theSupreme Court summarised the principles relating to the fit and properstandard in relation to the legal profession:11(a) The purpose of the fit and proper person standard isto ensure that those admitted to the profession arepersons who can be entrusted to meet the duties andobligations imposed on those who practise aslawyers.(b) Reflecting the statutory scheme, the assessmentfocusses on the need to protect the public and tomaintain public confidence in the profession.(c) The evaluation of whether an applicant meets thestandard is a forward looking exercise. The Court10 Carroll v Law Society of Ireland [2016] IESC 49, [2016] 1 IR 676 at [66].11 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [54]. The minorityagreed on these principles: at [105].must assess at the time of the application the risk offuture misconduct or of harm to the profession. Theevaluation is accordingly a protective one.Punishment for past conduct has no place.(d) The concept of a fit and proper person in s 55 involvesconsideration of whether the applicant is honest,trustworthy and a person of integrity.(e) When assessing past convictions, the Court mustconsider whether that past conduct remains relevant.The inquiry is a fact-specific one and the Court mustlook at all of the evidence in the round and make ajudgement as to the present ability of the applicant tomeet his or her duties and obligations as a lawyer.(f) The fit and proper person standard is necessarily ahigh one, although the Court should not lightlydeprive someone who is otherwise qualified from theopportunity to practise law.(g) Finally, the onus of showing that the standard is metis on the applicant. Applications are unlikely to turnon fine questions of onus.(c) Later in 2020, in Grant v Restructuring Insolvency & TurnaroundAssociation New Zealand Inc, Muir J applied the principles in Stanleyto a challenge to a RITANZ membership decision.12 He accepted thatthe Act at issue here has the purposes of protecting the public andmaintaining public confidence in the profession.13 He held it wasconsciously introduced to lift levels of professionalism and publicconfidence in the insolvency profession.14 He accepted the evaluationrequired is a forward-looking exercise and the relevance of pastconduct depends on whether it goes to the present ability of an applicantto meet his or her duties.15 He held that perfection (on the part of theapplicant) is not required in RITANZ's decision-making.16 We endorsethese points.12 Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc [2020] NZHC2876, [2021] 2 NZLR 65.13 At [65(a)].14 At [14(a)].15 At [65(b) and (i)].16 At [65(j)].(d) In 2021, in Registrar of the Real Estate Agents Authority v Cavanagh,Fitzgerald J applied the principles in Stanley and Grant to the fit andproper test in the real estate agents' regime.17 Relevantly, she held thatschemes, agreements or undertakings entered into by an applicant andtheir proposed employer are not generally relevant to application of thefit and proper test.18 She held an applicant is either a fit and properperson to be granted a licence or they are not, and the Real EstateAgents Act 2008 does not contemplate or enable a half-way house suchas imposing conditions on a licence.19[13] Section 12(1) of the Act subjects licences issued by an accredited body toconditions of general or specific application prescribed by the Registrar of Companiesunder s 22, including: minimum standards a person must meet to be licensed;conditions to which licences must be subject or which an accredited body may impose;requirements for ongoing competence; and minimum standards for accreditation ofaccredited bodies. Under s 12(3), the accredited body or Registrar may add or modifyconditions after a licence is issued, but only after providing a licensee an opportunityto comment pursuant to s 12(4).[14] Section 17 empowers a relevant authority to cancel a licence on groundsincluding that the person has failed to comply with a condition of the licence or is nototherwise a fit and proper person to hold a licence. Section 18 allows a relevantauthority to suspend a licence on the former ground, but not the latter. Under s 16, arelevant authority includes both an accredited body such as NZICA or, as explainednext, a recognised body such as RITANZ.[15] Sections 57 and 58 provide, relevantly:57 Exemption from membership requirement for certain overseaspractitioners, members of recognised bodies, and members ofreligious societies and orders(1) This section applies in respect of a person (P) if—17 Registrar of the Real Estate Agents Authority v Cavanagh [2021] NZHC 680 at [105].18 At [110].19 At [111].(a) the accredited body is satisfied that P is—(i) an overseas insolvency practitioner; or(ii) a member of a recognised body; or(iii) a practising member of a religious society or orderwhose doctrines or beliefs preclude membership ofany organisation or body other than the religioussociety or order of which P is a member; and(b) the accredited body has entered into a written arrangementwith P that complies with section 58; and(c) the accredited body is satisfied that P—(i) has satisfactory competence, qualifications, andexperience to act as an insolvency practitioner; and(ii) is otherwise a fit and proper person to be aninsolvency practitioner.(2) In this section, a recognised body is a person (for example, anincorporated professional body or industry group) that is recognised,by notice in the Gazette, by the Registrar for the purposes of thissection.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 ofthis section; and(b) include a binding agreement by P to be subject to the rules ofthe accredited body that are described in section 36(1).(2) The arrangement may provide for any other matters that the accreditedbody thinks fit, including matters relating to—(a) ongoing competence requirements:(b) reports and access to information:(c) the promotion of compliance with the requirements imposedby or under any enactment that relate to the carrying out ofinsolvency engagements:(d) the promotion of compliance with any relevant standardsrelating to insolvency engagements:(e) the promotion of reasonable care, diligence, and skill in thecarrying out of insolvency engagements:(f) the payment of fees:(g) the term of the arrangement.(3) Without limiting the means of enforcing the arrangement, thearrangement is binding on P as if P were a member of the accreditedbody.[16] So, the Act currently provides for two membership pathways by which aninsolvency practitioner can be licensed to practise:(a) First, under s 9(2)(c)(i), an applicant must be a member of an accreditedbody, currently NZICA.(b) Second, under s 9(2)(c)(ii) and ss 57 and 58, an applicant may be anoverseas insolvency practitioner, a member of a recognised body, or amember of a religious organisation whose beliefs preclude membershipof other organisations. RITANZ is the only currently recognised bodyunder s 57(2).[17] NZICA has issued a standard form template for the arrangements it expects tomake under s 58. Clause 5 of the template requires compliance with continuingprofessional development requirements, notification and declaration requirements, theengagement standard, practise review requirements, and any conditions or restrictionsto which the licence may be subject.[18] Under the transitional provisions in sch 1 of the Act, Mr Kamal could act onhis existing appointments as liquidator until 1 September 2021, though he was notallowed to take on new appointments. If he did not qualify under either pathway by1 September 2021, he was required to resign.Mr Kamal and RITANZ[19] In 2019, Mr Kamal applied to NZICA for readmission as a member. TheNZICA Disciplinary Tribunal recommended he not be readmitted. It referred to thesanctions imposed on him when a member, five 2013 charges by NZICA for improperuse of terms implying membership of NZICA, evidence that he was still implying hewas a chartered accountant in 2017 and 2018 when he was not, and a finding inMarch 2017 that he told prospective clients he was a chartered accountant when hewas not. The Tribunal was not satisfied Mr Kamal had shown that he was currently afit and proper person to be readmitted. But, before the NZICA could make a decision,Mr Kamal withdrew his application. In February 2020, Mr Kamal applied again forreadmission to NZICA. In June 2020, the Disciplinary Tribunal again recommendedthe application be declined and it was.[20] Accordingly, in August 2020, Mr Kamal applied for membership of RITANZ.RITANZ is an incorporated society. Its criteria for membership in r 5 include that acandidate "be of good character (as determined by the Board in its absolutediscretion)".20 Rules 5.5 and 5.6 provide that the Board may make the decision at itssole discretion and it is not required to provide reasons. But RITANZ accepts, as itmust, that its discretion is not absolute and it must act in accordance with the law,including the principles of natural justice.[21] Mr Kamal considers he can satisfy the fit and proper and good character testsif his application is considered along with potential conditions. To that end, hisapplication included:(a) A report of 17 August 2020 by Mr Bryan Williams. Mr Williams peerreviewed 15 of Mr Kamal's liquidation matters, though these files wereselected by Mr Kamal. Mr Williams offered to act as Mr Kamal'ssupervisor and mentor. The report concluded:When held up against the standard affirmed by Middleton J inASIC v Dunner, a conclusion can be reached that theliquidator is genuinely endeavouring to provide a service thatis valuable to the community and in respect of which he hasan entitlement to be paid. Nothing that I have seen suggeststhat the standard, or any fitness standard for that matter, isflagrantly disregarded.There are however shortcomings and practices that will needto be addressed within the mentoring process. Fortunately,Mr [Kamal] has adamantly and genuinely agreed to face anyfindings I may have and, as a result, submit to a process ofmentoring that would see such matters addressed. If there isan adherence to the mentoring process, there is no reason toassume that fitness to practice will be a problem.20 Rules of Restructuring Insolvency & Turnaround Association of New Zealand Inc, r 5.2(d).(b) A report of 17 August 2020 by Ms Lomas, a clinical psychologist.In her opinion, "in order for Mr Kamal to progress much further in hisapplication for registration with [the Chartered AccountantsAssociation of New Zealand] he would need to engage in a number ofactions that would demonstrate his ongoing transparent, honest andethical processes". Those actions were to develop an open and honestcontract with Mr Williams, openly discuss his work process and seekethical dialogue with Mr Williams, and benefit from clinical input froman experienced therapist to review his past decision-making processesto avoid such outcomes in the future.[22] From September 2020 to February 2021, a panel of the Board of RITANZconsidered Mr Kamal's application. On the basis of medical advice, Mr Kamaldeclined to attend a hearing but interacted with the Panel through an iterative writtenprocess, generating several hundred pages of written material.The decisions under challenge and appeal[23] On 19 February 2021, the Panel issued its 13-page decision.21 It canvassed theregulatory regime, the process of considering the complaint, the facts regardingMr Kamal and the good character requirement. In declining the application, itconcluded:5.11 While Mr Kamal has acknowledged much of his wrongdoing, he hasnot demonstrated to our satisfaction that he engages meaningfullywith misleading behaviour, is prepared to take responsibility for thatbehaviour and that such behaviour is not likely to recur. Mr Kamalhas in several circumstances deflected blame to others on matters thatare his responsibility, for example, the false statements on the website,the late filings referred to in the Williams report, and the draft deedsent to Mr Thomas.5.12 In summary, we are satisfied that the evidence of misconduct andunsatisfactory behaviour set out in the factual findings remainsrelevant such that in our assessment Mr Kamal has not met thestandard of "good character" in the Rules.21 RITANZ decision, above n 2.[24] Mr Kamal applied for judicial review of the Panel's decision. On 2 July 2021,Gordon J issued her judgment.22 The Judge considered the Panel's decision hadcorrectly set out the relevant principles of law, including that "the focus of theassessment must be on whether the applicant is of good character now and that this isa forward-looking exercise".23 The Judge held:(a) Sections 57 and 58 of the Act do not contemplate a candidate can be fitand proper only because of an arrangement made under thosesections.24 Rather, s 58 is necessary to enable NZICA to ensure that anon-member will be subject to the requirements of NZICA rules, codeof ethics and disciplinary processes.25 The Panel did not fail to considermandatory relevant considerations or adopt an improper purpose, andits decision was not unreasonable because it was based on that view ofthe Act.26(b) The Judge rejected a number of challenges to the Panel's decision anddecision-making. But she held the Panel erred in its treatment of threematters and made one finding that there was procedural unfairness.27We explain these issues in more depth in relation to the cross-appealbelow. The Judge issued two declarations regarding these four errors,but declined to quash RITANZ's decision.28[25] Mr Kamal appeals the upholding of RITANZ's decision. RITANZcross-appeals the granting of the declarations.Intensity of judicial review[26] Mr Hunter QC, for RITANZ, accepts RITANZ's membership decisions mustaccord with natural justice, adopt a fair process and accompanied by reasons. But hesubmits that the extent of the obligations on RITANZ must be viewed in light of its22 High Court decision, above n 3.23 At [49]. See RITANZ decision, above n 2, at [5.1(d)].24 At [71].25 At [69].26 At [77].27 At [87], [90], [101] and [136].28 At [162]–[163].nature and function. He relies on observations in United Kingdom case law, byLords Steyn and Cooke, and on observations in New Zealand case law.29[27] Mr Smith, for Mr Kamal, submits that variable standards of review should notbe endorsed as a concept because they are misleading and a distraction. He submitslegality is an objectively constant standard of review. He submits deference to adecision-maker is wrong in principle and constitutionally dangerous, and there shouldbe no leeway for a decision-maker to be unfair. He relies on New Zealand case lawand criticises "tortured" standards of review jurisprudence in North American caselaw.30[28] We acknowledge that New Zealand courts have been reluctant to engage in theacademic debate over standards of review, usually because of scepticism as to whetherdifferent approaches make a difference to the practical outcomes of cases. There arecases in which courts, including this Court, have endorsed relatively intense review incases involving issues of fundamental human rights.31 We take that to be a signal ofthe attention and care with which courts should approach such issues.32[29] This case is not the place to resolve the wider academic debate, if that ispossible.33 Suffice to say that we do not regard a professional disciplinary context torequire any greater or lesser intensity of review than usual, consistent with other case29 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at [28]per Lord Steyn and at [32] per Lord Cooke; Lab Tests Auckland Ltd v Auckland District HealthBoard [2008] NZCA 385, [2009] 1 NZLR 776 at [85] per Arnold and Ellen France JJ; Taylor vChief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [88] perRanderson J; Awatere Huata v Prebble [2005] 1 NZLR 289 (SC) at [37] per Elias CJ; Tracey vSpeedway Control Board of New Zealand Inc HC Hamilton A179/86, 3 February 1988 at 2 perDoogue J; Adlam v Stratford Racing Club Inc [2007] NZAR 543 (HC) at [80] per Miller J; andDaewoo Automotive Australia Pty Ltd v Motor Vehicle Dealers Institute Inc HC WellingtonAP18/99, 1 September 1999 at 19 per Wild J.30 Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 at [65]–[67] per Cooke J; New ZealandCouncil of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456 at [81]–[85]per Cooke J; Financial Services Complaints Ltd v Chief Parliamentary Ombudsman [2021] NZHC307 at [70]–[71] per Grice J; and O'Keeffe v New Plymouth District Council [2021] NZCA 55,(2021) 22 ELRNZ 506 at [60] per Goddard J. As to the North American position, see Canada(Attorney-General) v Best Buy Canada Ltd 2021 FCA 161, [2021] FCJ No 848 per D G Near JA.31 Kim v Minister of Justice of New Zealand [2019] NZCA 209, [2019] 3 NZLR 173 at [45]–[47].32 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC3228, [2021] NZRMA 22 at [49].33 See, in general, Dean R Knight Vigilance and Restraint in the Common Law of Judicial Review(Cambridge, Cambridge University Press, 2018).law in such contexts.34 The interests at stake, namely professional reputations andlivelihoods, are keenly felt by the participants. The courts will interpret the meaningof the relevant statute carefully from its text and in light of its purpose and context, asthey do all statutes. The courts will apply common law principles such as naturaljustice in light of the context, as they do in all cases. There is no question of deference.The question is whether a decision under challenge is consistent with the resultingstandard or not.The appeal: Did RITANZ err in rejecting the application?Submissions[30] Mr Smith submits:(a) The select committee which considered what became the Act noted theadvantage of retaining a range of insolvency practitioners to service awide variety of insolvency processes.(b) The fit and proper test is forward-looking. Section 58(2) contemplatesthat individuals might meet the standards but nonetheless need to besupervised or monitored, including through bespoke requirements for"ongoing competence matters". On that basis, not meeting the fit andproper standard on an unconditional basis does not preclude conditionalapproval.(c) RITANZ's decision did not engage with the recommendations byMr Williams for mentoring and by Ms Lomas for ongoing therapy.(d) RITANZ's approach to conditions as irrelevant is contrary to the textand scheme of the Act and thwarts Parliament's intention to allow theNZICA to impose bespoke licensing conditions through s 58(2).RITANZ should have taken into account a proper interpretation ofNZICA's powers to impose conditions. It did not.34 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [5]–[9].(e) Accordingly, the decision should be quashed and remitted to RITANZfor reconsideration.[31] Mr Hunter supports RITANZ's and Gordon J's interpretation of the Act andopposes the relief sought.Fit and proper[32] In his report, Mr Williams quoted Australian case law on the standards againstwhich liquidators should be judged:35The extensive powers vested exclusively in the liquidator entail acorresponding vulnerability in the creditors, members, and the public. Theliquidator is a fiduciary on whom high standards of honesty, impartiality andprobity are imposed both by the Act and the general law. As an officer of thecompany, the liquidator has a statutory duty of care, diligence and good faith.[33] We agree that liquidators have a special position of power over others and theircompetence and character will bear heavily on their use and potential abuse of thatpower. Accordingly, the purpose of the Act emphasises the promotion of quality,expertise and integrity of insolvency practitioners. That, in turn, informs the purposeof the licensing regime.[34] Section 9(2)(a) of the Act requires that NZICA must be satisfied that a personmeets the prescribed minimum standards and "is otherwise a fit and proper person tohold a licence" for that person to be eligible to be licensed. That applies to all personswho can be licensed, whether they are licensed as a member of NZICA unders 9(2)(c)(i) or as a member of RITANZ under ss 9(2)(c)(ii) and 57. The conditionswhich can be imposed on licences issued under the s 9(2)(c)(i) route, under s 12, donot mitigate the requirement to meet the fit and proper standard. Neither does anythingin ss 57 or 58, in addition to s 12, mitigate that requirement for licences issued underthe s 9(2)(c)(ii) route. Indeed, s 57(1)(c)(ii) reinforces the application of the fit andproper standard for insolvency practitioners' licences under that route, which appliesin addition to the fit and proper standard required to hold a licence under s 9(2)(a)(ii).35 Australian Securities and Investments Commission v Dunner [2013] FCA 872, (2013) 303 ALR98 at [22], quoting Australian Securities and Investments Commission v Edge [2007] VSC 170,(2007) 211 FLR 137 at [44].[35] Section 57(1)(b) requires a written arrangement to be entered into betweenNZICA and a person licensed under the s 9(2)(c)(ii) route. The purpose of that, asrevealed by reading ss 57 and 58 together, is to make those qualifying under this routesubject to NZICA rules and requirements in the same way members of NZICA are,who are licensed through the s 9(2)(c)(i) route. Section 58 is not a route by whichNZICA can diminish the application of the fit and proper standard through bespokeconditions, even if it empowers the imposition of more bespoke conditions than thoseavailable under s 12, which we doubt.36 As Fitzgerald J said in Registrar of the RealEstate Agents Authority v Cavanagh in relation to a different statutory regime, anapplicant is either a fit and proper person to be granted a licence or they are not.37[36] The conditionality advocated by Mr Kamal would erode the fit and properstandard to such an extent that it would undermine the purposes of the licensingregime. In passing the Act, Parliament saw the benefit of allowing a range of personsto act in the market of insolvency practise. However, its purpose in subjecting alllicensees to the fit and proper standard was also to maintain minimum standardsrelated to expertise, skills and character, whichever route is pursued.[37] We agree with Mr Hunter that, if Mr Kamal's arguments were correct, therewould be a fundamental inconsistency in compliance with the fit and proper standarddepending on which route to membership is taken. It would be surprising if anapplication could meet one standard but not the other. In this regard, RITANZ'smembership criteria is one of the factors on which the regulatory scheme relies.In deciding on its membership, RITANZ provides a safeguard on the alternative routeto qualify as an insolvency practitioner. Its membership decisions must be madeaccordingly. We consider this decision was made properly, in light of thatresponsibility.[38] RITANZ is entitled to make its own assessment of applicants for membership.But, as it acknowledges, RITANZ must have regard to the statutory context in which36 This conclusion depends on interpretation of the statute at issue here. That is why it is a differentconclusion than that of the United Kingdom Supreme Court about a statute which was explicitabout conditions in R (OWD Ltd (in liq)) v Revenue and Customs Commissioners [2019] UKSC30, [2019] 1 WLR 4020.37 Registrar of the Real Estate Agents Authority v Cavanagh, above n 17, at [111].its decisions sit. It must have particular regard to the statutory fit and proper standard,which informs the good character requirement in its own rules. Mr Kamal's historyspeaks to his character. There was more than enough evidence on the basis of whichRITANZ was entitled to decide his application did not meet the good characterrequirement, just as it did not meet the standard for NZICA membership.[39] We consider the Judge and RITANZ were correct. We dismiss the appeal.Accordingly, we decline to quash RITANZ's decision.The cross-appeal: was the High Court wrong to make declarations?[40] Mr Hunter submits the High Court's two declarations about four errors shouldbe set aside because no errors of law were established and, even if they were,declarations would not change the outcome. He says, while apparently minor, theseissues are important in setting a precedent for RITANZ's procedures when consideringfuture applications. Mr Smith submits RITANZ materially erred by not properlyassessing the relevant risk in a forward-looking manner and, accordingly, the firstdeclaration was properly made. He submits the second declaration was properly madebecause the finding was made in breach of natural justice.[41] We treat the declarations in relation to each error in turn. For ease of reference,the first declaration was:38(a) The panel erred in law in its decision by not referring to and assessingthe significance of the following matters in making its "goodcharacter" assessment in a forward-looking way;(i) Mitigating features of the tax offending identified in theDistrict Court Judge's sentencing decision;(ii) Mr Kamal's acknowledgment of his error in his conductreferred to by Associate Judge Bell and Mr Kamal'sacknowledgment that he would not make that same mistakeagain;(iii) Mr Kamal's responses to the 2020 NZICA decision;38 High Court decision, above n 3, at [163].Mitigating features of tax offending[42] In sentencing Mr Kamal for his tax offending in 2013, the District Court Judgeidentified some personal mitigating features. These were the absence of previousconvictions, payment of reparation in full, cooperation with the authorities, medicalissues and community-mindedness.39 The High Court accepted that RITANZ'sdecision did not refer to mitigating factors, that it should have done so, and shouldhave taken them into account.40[43] Mr Hunter points to the evidence of Mr Matthew Kersey, of the RITANZ Panel,that the Panel carefully considered all the material. He submits that this evidence wasnot challenged by Mr Kamal, nor rejected by the High Court Judge. He submitsRITANZ was not required to refer, in its decision, to the mitigating factors in thesentencing decision because it was not unduly focussed on the aggravating factors.Mr Smith submits RITANZ did emphasise the aggravating factors, inconsistently withthe sentencing.[44] The RITANZ Panel described Mr Kamal's tax offending briefly infour paragraphs of its report.41 Its assessment of the offending was limited to notingthat it occurred when Mr Kamal was "well into adulthood and his practising career"and as "relatively complex and premeditated".42 It was one of several factors leadingto the Panel's conclusion that, "[w]hile Mr Kamal has acknowledged much of hiswrongdoing, he has not demonstrated to our satisfaction that he engages meaningfullywith misleading behaviour, is prepared to take responsibility for that behaviour andthat such behaviour is not likely to recur".43[45] The Panel did not refer to the mitigating factors identified in the sentencing ofMr Kamal for tax offending. It could have done so. But the District Court judgmentitself did not dwell significantly on the mitigating factors. In the context of theevidence before it, the Panel was not required to do so either. The Panel was not39 Inland Revenue Department v Kamal, above n 5, at [32]–[35].40 High Court decision, above n 3, at [87].41 RITANZ decision, above n 2, at [4.3]–[4.6].42 At [5.4].43 At [5.11].required to refer explicitly to all information before it. The Panel's characterisation ofthe offending was accurate and relevant. The Panel noted Mr Kamal hasacknowledged much of his wrongdoing. The mitigating factors in that case do notmake a material difference to the use made of the offending as one of the factorssustaining the Panel's conclusion. That is reflected in the fact that the Judge, correctly,did not consider that failing to refer to the mitigating factors impugned the validity ofthe decision. We do not consider failing to refer to the mitigating factors was an errorof law.Acknowledgement of error identified by Associate Judge Bell[46] In his first statement to the Panel, Mr Kamal referred to the decision ofAssociate Judge Bell in 2015 to order costs of $5,446 against him personally.The reason was that Mr Kamal did not call a creditor's meeting and opposed anapplication to call such a meeting. Mr Kamal acknowledged to the Panel that he madea mistake, explained it was early in his insolvency career, he was acting on legal adviceto negotiate with the other parties to avoid the cost of a creditor's meeting, and said hewould not make that mistake again. Gordon J accepted there is a degree of consistencybetween Mr Kamal's explanation to the Panel and his explanation to Associate JudgeBell that the cost of the meeting was not justified.44[47] The RITANZ Panel did not record Mr Kamal's acknowledgement in its report.It explained and quoted Associate Judge Bell's observations about Mr Kamal'sconduct and his rejection of the proposition that it was a simple error of judgment.45In its assessment the Panel noted that "Mr Kamal has been found to have knowinglybreached the law in 2015, with regard to holding a creditors' meeting".46The High Court Judge considered the Panel should have identified theacknowledgement and included it in its assessment.4744 High Court judgment, above n 3, at [89].45 RITANZ decision, above n 2, at [4.24].46 At [5.5].47 High Court judgment, above n 3, at [90].[48] Mr Hunter submits that not referring to this matter did not impact on RITANZ'sultimate decision nor on the explanation to Mr Kamal. Mr Smith submits thatRITANZ's failure meant a principal point did not receive proper consideration.[49] We agree with the Judge that it would have been better for the Panel to havementioned Mr Kamal's acknowledgement. But, even so, the Panel was entitled to relyon Associate Judge Bell's conclusions about Mr Kamal's behaviour and explanation.As it mentioned, the Panel accepted generally that "Mr Kamal has acknowledgedmuch of his wrongdoing", while still reaching its overall finding quoted above at [44].And, again, the Judge, correctly, did not consider that the error impugned the validityof the decision. In the context of the circumstances of this decision, we do notconsider the failure to refer to the acknowledgement was an error of law.Response to 2020 NZICA decision[50] After NZICA declined Mr Kamal's application for membership in 2020,Mr Kamal requested that the Disciplinary Tribunal reconsider the decision. The threeissues he raised were that the Tribunal did not provide him with an opportunity toaddress its concerns about his financial position, did not tell him what exactly it wasabout his demeanour the Tribunal found troubling, and wrongly criticised his relianceon letters from his counsellor without mentioning his offer to commission a reportfrom an independent psychologist.[51] The RITANZ Panel summarised the NZICA Tribunal's 2020 report in oneparagraph.48 It did not refer to Mr Kamal's response. In the first paragraph of itsassessment the Panel said.49There is evidence before the Panel that Mr Kamal has committed dishonestyoffences and has at least recklessly, consistently misled the public about hisstatus as a Chartered Accountant, as a "registered" liquidator, and as a memberof RITANZ. The misrepresentations of his status have occurred as recently asduring this application process. As recently as the middle of last year, anNZICA Disciplinary Tribunal has recommended that Mr Kamal not bere-admitted as a member due to those issues.48 RITANZ decision, above n 2, at [4.12].49 At [5.3].[52] The High Court accepted that the RITANZ Panel did not record Mr Kamal'sresponse to the NZICA decision. The Judge said, although it is not necessary for adecision-maker to refer to every item of evidence before it, the Panel should haveassessed Mr Kamal's responses.50[53] Mr Hunter submits it is difficult to see the relevance of the point to RITANZ'sdecision because RITANZ was not competent to challenge NZICA's decision.Mr Smith submits there is obvious relevance to forward-looking risk and there wascumulative significance to the point.[54] We agree that the NZICA Tribunal's recommendations, and the reasons forthem, were relevant to the forward-looking risk being assessed by the RITANZ Panel.If Mr Kamal's response to the recommendations was relevant to what the Panel drewfrom those recommendations and reasons, then the Panel should have referred to them.But none of the specific points made by Mr Kamal in his response were relevant to thepoints for which the Panel relied on the Tribunal's report. Two of the three pointsconcerned process. Neither they, nor the third point, affected the Tribunal's nor thePanel's conclusions. Accordingly, and correctly, the Judge did not consider thisimpugned the validity of the Panel's decision.[55] We do not consider the specific errors identified by the High Court were errorsof law, for the reasons given above. Neither do we consider that, collectively orindividually, they detracted from the forward-looking nature of RITANZ's decision.These sorts of decisions, and the reasoning in reports leading to them, need to beformulated carefully taking into account the relevant considerations, and not irrelevantconsiderations. But they need not be unduly lengthy or detailed in doing so.Perfection is not required of RITANZ any more than it is of an applicant. RITANZ'sreport here strikes us as being pitched at the right level of detail.Breach of natural justice[56] In its interactions with Mr Kamal leading up to the report, the RITANZ Panelasked him about a draft deed of arrangement in 2020, for taking liquidation50 High Court decision, above n 3, at [101].appointments, that he sent to another insolvency practitioner, Mr David Thomas.The draft deed was drafted by Mr Kamal's solicitor. It was not agreed to byMr Thomas and never executed. Initially, RITANZ asked Mr Kamal about thecircumstances regarding this approach. In his second statement, Mr Kamal said"[n]othing in the draft deed was intended to be in breach of the new licensing regime"and he "assumed that it was consistent with the legislation, which was [his] intention".Later, RITANZ put 10 detailed questions to Mr Kamal about aspects of the proposal.In his fourth statement, Mr Kamal said:As I explained in my Second Statement (paragraph 33), the proposed deedwas drafted by my lawyer Brent Norling. It was not intended for final use. Itwas intended to be used to have a conversation; for discussion purposes. Theintention was that, if that conversation progressed, which it could only do ifthere was interest in exploring the proposal, detailed consideration would havebeen given to the draft terms, including to ensure that all parties were happythat they complied with all legal requirements – which would sensibly haveinvolved all parties seeking regulatory confirmation of that. Thatconsideration was not necessary, as the proposed discussions did not progress.[57] RITANZ put to Mr Kamal four inferences it drew from the documents. In hissixth and final statement, Mr Kamal repeated a summarised version of his fourthstatement.[58] In its report, the RITANZ Panel outlined in 10 paragraphs its concerns overMr Kamal's explanations of the draft deed of arrangement.51 The Panel consideredthat, on its face, the draft appeared to circumvent the licensing regime. It recordedthat Mr Kamal said it was not intended to be in breach of the new licensing regimeand he assumed it was consistent with it. The Panel identified the four adverseinferences it had drawn:52(a) Mr Kamal forwarded the draft Deed of Arrangement to Mr Thomason the eve of insolvency practitioner regulation coming into force;(b) Mr Kamal was seeking essentially to practice as an insolvencypractitioner in a manner inconsistent with the new regulatoryenvironment, and despite his lack of approval to act as an insolvencypractitioner;51 RITANZ decision, above n 21, at [4.25]–[4.34].52 At [4.33] (emphasis original). These were the same as the inferences put to Mr Kamal, except thesecond was reworded to make clear the Panel considered he was seeking to practice in a mannerinconsistent with the new regulatory environment.(c) Mr Kamal pursued this opportunity with Mr Thomas after being toldthat Mr Thomas could not help;(d) Mr Kamal, after receiving Mr Thomas' written views (including thatwhat was being proposed was "not in the spirit of the law"), imploredhim to agree to the arrangement, saying: "I'm counting on you mate.I sent you the draft agreement. It's only for a [few] weeks or months."[59] The Panel concluded:53Mr Kamal has not satisfied us that he would have sought regulatory approvalfor the form of the agreement. It is concerning to us that Mr Kamal wascomfortable enough with the draft deed to propose it to Mr Thomas despite itsapparent inconsistency with the regulatory regime, which should have beenapparent to such an experienced practitioner. Mr Kamal demonstrated anunwillingness to engage with us on the ethical issues which were evident inthe draft deed. He did not appear to us to be willing to take responsibility forthe content of the draft deed.[60] In its overall assessment, the Panel stated "[t]he evidence from 2020 of thedraft deed from Mr Thomas and Mr Kamal's responses to our questions about itshow in our view that Mr Kamal did not understand the gravity of being party in anyway to an arrangement that would circumvent the effect of the [Act]".54[61] The High Court observed that Mr Kamal was not asked whether he would havesought approval from either RITANZ or NZICA if the arrangement had proceededfrom a first draft.55 The Judge held that RITANZ had made the finding in the face ofa clear statement by Mr Kamal to the Panel that he would have sought regulatoryapproval for the draft deed.56 She accepted that the finding was important and "isunfair in circumstances where RITANZ did not directly ask Mr Kamal the relevantquestion".57 The Judge declared that:58(b) The panel erred in stating that Mr Kamal had not satisfied the panelthat he would have sought regulatory approval for an arrangementbetween himself and Mr Thomas. The finding was unfair and was abreach of natural justice.53 At [4.34].54 At [5.5].55 High Court decision, above n 3, at [134].56 At [135].57 At [136].58 At [163].[62] Mr Hunter submits RITANZ was obliged to warn Mr Kamal of the risk ofadverse findings, which it did, but had no obligation to put this finding to Mr Kamal.He submits it was open to RITANZ to reach the finding it did and there was noreviewable error. Mr Smith submits this was an important adverse finding which washighly material to whether Mr Kamal met the good character test. He submits thefinding was unsupportable on the evidence and was never put directly to Mr Kamal,which was the least that was required.[63] In his fourth statement to the Panel, Mr Kamal said the intention was thatdetailed consideration would be given to the draft terms including to ensure all partieswere happy they had complied with legal requirements, "which would sensibly haveinvolved all parties seeking regulatory confirmation of that". The Panel gave him anopportunity to respond to the adverse inferences it drew and he responded in almostthe same terms. The Judge is correct that the Panel did not put to Mr Kamal the precisequestion of whether he would have sought regulatory approval for the agreement. Butwe consider his statements effectively proffered to the Panel the inference that hewould have done so. The Panel's statement that Mr Kamal had not satisfied it that hewould have sought regulatory approval represents its evaluative conclusion about theinformation he gave it, twice. We consider the evidence justifies that conclusion.[64] So the Panel gave Mr Kamal several opportunities to provide information to itabout the issue of the proposed agreement. It put to him four adverse inferences itdrew. It reported its conclusion about his explanations. That conclusion was not afinding of fact but a statement about its own lack of satisfaction with his explanations.The text that follows the conclusion indicates it was part of the Panel's widerconclusions about Mr Kamal's attitudes to the proposed agreement, the essence ofwhich the Panel had put to Mr Kamal for comment. The principles of natural justicedid not require any more fine-grained an approach by the Panel than that. We do notconsider this constituted an error of law.Making declarations[65] In general, Mr Hunter submits the making of declarations was disproportionateand unfair and has no great vindicatory value here. Mr Smith supports the making ofthe declarations, in the interests of the rule of law.[66] Remedies in judicial review are discretionary. But it is well-established that"courts today will generally consider it appropriate to grant some form of relief wherethey find reviewable error".59 Declarations are, of course, an important remedy forthe vindication of rights consistent with the rule of law.60[67] We have concluded that the High Court erred in finding aspects of the RITANZdecision were errors of law. There is therefore no occasion for the declarations to bemade, and we quash them.Costs[68] Both parties submitted costs should follow the event. Accordingly, we awardcosts for a standard appeal on a band A basis and reasonable disbursements to RITANZon the appeal and the cross-appeal. We do not certify for second counsel.Result[69] The appeal is dismissed.[70] The cross-appeal is upheld and the declarations of the High Court are quashed.[71] Costs are awarded to the respondent for a standard appeal on a band A basisfor the appeal and cross-appeal, and reasonable disbursements.Solicitors:Langford Law, Wellington for AppellantDLA Piper, Wellington for Respondent59 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112] per Elias CJ andArnold J. See also Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601,[2013] 2 NZLR 57 at [155]; and Matthew Smith New Zealand Judicial Review Handbook (2nd ed,Thomson Reuters, Wellington, 2016) at [74.2.2].60 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [1] per Elias CJ.