In 2006, small business owner John Viscariello commenced proceedings against Peter Ivan Macks in his capacity as liquidator of two companies, Bernsteen Pty Ltd and Newmore Pty Ltd.
In December 2014, the chief justice of the Supreme Court of South Australia, Chris 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 and 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.
The regulator agreed to adjourn its application, pending Mr Macks’ appeal, on the basis that Mr Macks expedites the appeal.
ASIC’s application is listed for directions on 3 August 2015.