Following a Court inquiry initiated by ASIC, the Supreme Court of South Australia has found that liquidator Peter Ivan Macks dishonestly provided fabricated memoranda to ASIC in response to a statutory notice.
His Honour Justice Doyle found that on or about 25 February 2010 Mr Macks fabricated memoranda and placed on them the initials of other persons working at his firm in order to deceive ASIC during its investigation into Mr Macks’ conduct as liquidator of Bernsteen Pty Ltd (Bernsteen) and Newmore Pty Ltd (Newmore). Mr Macks did so to create the false impression that he had justified the commencement and continuation of legal proceedings against a third party that owed money to Bernsteen, and that others at his firm concurred with his view.
At the time he fabricated the documents, Mr Macks was a principal at Prentice Parbery Barilla (PPB). Mr Macks currently practises at Macks Advisory.
His Honour said, ‘the Memoranda were created with the intention of passing them off to ASIC as either original documents created on the dates they bore, or as true photocopies of those originals. I am also satisfied that Mr Macks fabricated the documents, placed the initials on them, and submitted them to ASIC, dishonestly and for the purpose of deceiving ASIC in the course of its investigation of his conduct as the liquidator of Bernsteen.’
At a further hearing yet to be set, ASIC will seek orders regarding Mr Macks’ registration as a liquidator for the purposes of protecting the public.
His Honour was not satisfied regarding ASIC’s separate allegation that Mr Macks had failed to exercise his powers and discharge his duties as an officer of a company with the degree of care and diligence required under s180(1) of the Corporations Act when he incurred approximately $150,000 in legal fees by continuing litigation on behalf of Bernsteen in order to recover of a debt of less than $28,000, despite advice from his lawyers to discontinue the litigation.
ASIC brought the inquiry before the Court in 2015 under s536(1) of the Corporations Actin order to ascertain whether Mr Macks was a fit and proper person to be a registered liquidator and whether disciplinary action was required, to ensure that only suitable persons are carrying out the important statutory responsibilities of an official liquidator, and to maintain public confidence in the insolvency profession.
ASIC first became involved in the proceedings against Mr Macks in December 2014 by intervening to support a private application made by Mr John Viscariello to remove Mr Macks as liquidator of two companies only, Bernsteen and Newmore.
Mr Viscariello first commenced proceedings against Mr Macks in 2006, alleging that Mr Macks engaged in improper conduct in his capacity as a liquidator for Bernsteen and Newmore. The matter was decided by the Honourable Chief Justice of the Supreme Court of South Australia Chris Kourakis in 2014. In April 2015 His Honour made orders by consent that Mr Macks be removed as liquidator of Bernsteen and Newmore and a new liquidator be appointed. Mr Macks appealed the Supreme Court decision.
In May 2015, ASIC filed its own separate application against Mr Macks seeking various orders, including that the court conduct an inquiry into Mr Macks pursuant to s536(1) of the Corporations Act. ASIC agreed to adjourn its own application pending the determination of Mr Macks’ appeal in the action brought against him by Mr Viscariello, on the basis that Mr Macks was to expedite his appeal.
The Court inquiry initiated by ASIC, the subject of this judgment, was heard before His Honour Justice Doyle in the Supreme Court of South Australia between 11 and 18 May 2020.