Former Berndale Director Daniel Kirby Sentenced for Dishonest Conduct

Daniel Kirby of Melbourne, a former director of the Berndale group of companies, has been sentenced to 2 years and 11 months imprisonment for dishonest conduct and misuse of company funds. The sentencing took place on July 10, 2025, in the Federal Court of Australia in Melbourne. Mr. Kirby will be released after 12 months upon entering a $1,000 recognisance, on the condition of good behavior for a further three years.

Mr. Kirby had pleaded guilty on May 15, 2025, to one count of providing false or misleading information to an auditor, one count of dishonest use of his position as a director, and one count of dishonest conduct in relation to a financial service.

Justice Abraham, in her remarks, stated that the offenses "reflected an ongoing deliberate disregard by Mr Kirby for responsibilities he held and the trust reposed in him, given his position in the business," and that he "deliberately undermined an audit process to bypass a regulatory measure designed to protect consumers."

This case, prosecuted by the Office of the Director of Public Prosecutions (Cth) following an investigation by ASIC, marks the first ASIC matter to proceed in the Federal Court of Australia under its recently expanded corporate criminal jurisdiction.

Mr. Kirby was previously a director of Berndale Capital Securities Pty Ltd, a collapsed retail over-the-counter derivatives provider. His co-accused and former Berndale director, Mr. D'Amore, was committed to stand trial in the criminal jurisdiction of the Federal Court of Australia on September 16, 2024, with a case management hearing scheduled for July 24, 2025.

ASIC had banned Mr. D'Amore from providing financial services for six years and canceled Berndale's Australian financial services license in 2018. In 2019, ASIC successfully sought to wind up Berndale and two associated companies, with liquidators identifying over $8.9 million owed to former Berndale clients. Both Mr. D'Amore and Mr. Kirby were charged in 2023 with dishonesty offenses, including the alleged misuse of over $1 million in company funds.