ASIC has intervened in a private court proceeding involving South Australian liquidator, Peter Ivan Macks, in which various allegations of improper conduct were made against him.

In 2006, small businessman, Mr John Viscariello, commenced proceedings against Mr Macks in his capacity as liquidator of two companies - Bernsteen Pty Ltd and Newmore Pty Ltd.

Late last year, the Chief Justice of the Supreme Court of South Australia, Chris Kourakis, delivered his reasons for his decision in the proceedings. Download the reasons here.

Following the delivering of his reasons, Justice Kourakis made various declarations including that Mr Macks, in his capacity as liquidator of one of the companies, failed to exercise the degree of care and diligence required of him as an officer of the company, failed to exercise his powers and discharge his duties in good faith and in the best interests of the company, and engaged in litigation to gain an advantage for himself to the detriment of the company.

ASIC intervened in the proceedings to support an application made by Mr Viscariello to remove Mr Macks as liquidator of the companies and to appoint a new liquidator. On 15 April 2015, Justice Kourakis made those orders

Mr Macks has lodged an appeal against orders made in the proceedings. A date for the appeal is yet to be listed.

ASIC has also filed its own separate application against Mr Macks seeking various orders, including that the court conduct an inquiry into whether, as a consequence of Justice Kourakis’ reasons and declarations, Mr Macks should continue as liquidator of his other external administrations, whether Mr Macks is a fit and proper person to be registered as a liquidator and has capacity to adequately and properly perform his duties and, whether the court should cancel Mr Macks’ registration as a liquidator.

ASIC agreed to adjourn its application pending Mr Macks’ appeal, on the basis that Mr Macks expedites his appeal. ASIC’s application is listed for directions on 3 August 2015.

Background

Mr Macks was appointed liquidator of the two companies in December 2001.

Download ASIC’s approach to involvement in private court proceedings here.

Editor's note 1:

The directions hearing listed on 3 August 2015 has been rescheduled to 15 September 2015.

Editor's note 2:

On 15 September 2015, the matter was adjourned for further mention on 15 February 2016.

Editor's note 3:

On 8 February 2016, the directions hearing was rescheduled to 23 May 2016.

Editor's note 4:

On 22 February 2019 the Supreme Court of South Australia:

• allowed ASIC’s application to amend its originating process;
• dismissed Mr Macks’ application for a permanent stay of the proceedings; and
• ordered that there be an inquiry by the Court under s536(1) of the Corporations Act into Mr Macks’ conduct identified in ASIC’s second originating process.

Read the full decision here.