Macks v Viscariello – appeal outcome

The appeal decision in the contentious matter of Macks v Viscariello has now been delivered. It needs to be read in full to understand the outcome.

As the Full Court of the Supreme Court of South Australia summarises it:

Mr Macks’ (the liquidator) appeal is allowed on certain grounds, but dismissed on others.

A declaration made by the Primary Judge [in 2014] that Macks breached s 180 of the CA from June 2005 was varied, the Full Court ordering that the declaration of breach be varied to commence later, on 28 April 2006. This concerned the continuation of debt recovery proceedings.

A finding that Mr Macks acted with collateral purposes from June 2005 is set aside. The findings and therefore the declarations that Mr Macks breached ss 181 and 182 of the CA from June 2005 are set aside.

The findings that the Bernsteen legal proceedings and George legal proceedings were from June 2005 an abuse of process were set aside.

The issues of allegations of a breach of ss 181 and 182 on the exercise of the Full Court’s discretion should not be remitted for trial.

A retrial? Thankfully no

As to the last point, Macks sought a retrial “due to claimed unfairness arising out of the conduct and findings of the Primary Judge, including that they were required to ‘meet a case which ranged well beyond the pleadings and included unpleaded allegations of “fabricated” documents made without notice in cross-examination.’ Their complaint was primarily that their trial had been unfair”.

The Full Court declined to order a retrial based on a number of matters. 

“First, there is already a declaration of a breach of s 180 (1) from April 2006. The court has indicated its disapproval of Mr Macks’ conduct. Secondly … one of the reasons relied upon by the Primary Judge when considering the question of whether to grant declaratory relief, no longer exists. While we have held that it was not a precondition to his removal as a liquidator, the fact remains that Mr Macks is no longer the liquidator of the Companies and has not been since April 2015”.

“The events in question commenced in 2002. There has already been a protracted and expensive trial about the issues. Substantial legal costs have been incurred.

The evidence at the trial demonstrated that ASIC is investigating the conduct of Mr Macks. It could be said that ASIC is the appropriate body to consider proceedings against Mr Macks relating to potential breaches of his duties as liquidator.

A further trial with the remedy confined to seeking declarations of breaches of ss 181 and 182 in our view lacks utility.

We decline to exercise our discretion to remit the matter for retrial or reconsideration”.

There is a limit in how far back the law, and the regulators, should go in dealing with matters of, as here, claimed professional misconduct and breach of duty some 16 years ago. 

See Macks v Viscariello [2017] SASCFC 172

See my earlier comments on the delay in this decision being delivered – liquidator conduct appeals – how long should they take? 


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One Response

  1. A good summary Michael. You make a very interesting point on the delay and justice issue. Dean McVeigh was convicted over a very old matter, I recall.

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