On 12 February 2021, the Supreme Court of South Australia handed down its penalty decision that Peter Ivan Macks’ liquidator registration be suspended for a period of three years, commencing on a date yet to be fixed.
Mr Macks’ suspension will begin when His Honour Justice Doyle hands down final orders.
Pursuant to the decision, orders are also to be made for the removal of Mr Macks from all current appointments as liquidator or receiver and manager, that Mr Macks be restrained from accepting any kind of corporate insolvency appointment during his suspension period, and that he pay 50 per cent of ASIC’s costs of the proceedings.
The penalty decision follows His Honour Justice Doyle’s decision 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 and Newmore Pty Ltd (20-265MR). 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.
Ian Burford of Macks Advisory will become the sole appointee for all companies where Mr Macks was removed.
In his judgment, His Honour Justice Doyle said, ‘The position of liquidator is a repository of public trust; the public is entitled to trust a liquidator to perform their functions to a high standard and with scrupulous attention to obligations of candour, honest and integrity.
‘When a liquidator falls short of the standards expected of them, the public’s trust in the office of liquidator is eroded. That in turn has a corrosive effect on the administration of the body of insolvency law, and consequently on the administration of justice.’
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Background
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. 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 the decision of 12 February 2021, was heard before His Honour Justice Doyle in the Supreme Court of South Australia between 11 and 18 May 2020.