Australian Securities and Investments Commission v Macks

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MACKS
[2025] SASC 4
Judgment of the Honourable Justice Stein
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - TO GIVE OPERATION AND EFFECT TO ACT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - EXERCISE OF POWERS AND DUTIES
On 19 February 2021, this Court made orders suspending the respondent’s registration as a registered liquidator for a period of three years. Prior to the expiry of that period of suspension, the respondent made an application for renewal of his registration as a liquidator. That application was refused by the applicant on grounds including that the respondent had failed to maintain adequate and appropriate professional indemnity and fidelity insurance and accordingly the respondent’s registration lapsed on 28 March 2023. The respondent’s failure to hold such insurance related to circumstances within the insurance market which meant he was unable to obtain relevant insurance cover until such time as any suspension had expired.
Following the expiry of the suspension period in February 2024, the respondent brought an application to be reinstated as a registered liquidator. The applicant refused to do so on the basis that the refusal of the prior application meant the respondent was no longer registered and consequently was required to lodge a fresh application for registration.
The respondent applied to the Court for orders for an extension of time within which to lodge a further application for renewal of registration as a liquidator pursuant to the s 20-70 of the Insolvency Practice Schedule (Corporations) (Corporations Act 2001 (Cth) sch 2 (“IPSC”)).
Held (allowing the application)
1.The prior decision to refuse the renewal of registration does not preclude the decision maker from considering a fresh application and consequently does not preclude the Court from granting an extension of time within which to make such an application.
2.The decision maker must consider any application brought pursuant to an extension of time granted by the Court on the basis of circumstances in existence as at the date the application is made.
3.The obligation to maintain adequate and appropriate insurance in s 25-1 of the IPSC is a present obligation relating to working as a registered liquidator and consequently does not apply to a suspended liquidator not working as a registered liquidator. The insurance obligation on a suspended liquidator is an obligation to hold run off cover which is imposed only as a condition of the liquidator’s registration by r 20-5(4) of the Insolvency Practice Rules (Corporations) 2016 (Cth).
4.It is appropriate in the circumstances to exercise the discretion to grant an extension of time.
Words and Phrases:
1.“adequate and appropriate insurance”, “must maintain”, “liabilities that the person may incur working as a registered liquidator” (Corporations Act 2001 (Cth), sch 2)

Corporations Act 2001 (Cth) sch 2, ss 20-20, 20-30, 20-35, 20-70, 20-75, 25-1, 30-1, 35-1, 40-25, 40-30, 40-40, 45-1; Insolvency Practice Rules (Corporations) 2016 (Cth) r 20-5; Acts Interpretation Act 1901 (Cth) r 20-5; Bankruptcy Act 1966 (Cth), referred to.
Australian Securities and Investment Commission v Macks (No 5) [2021] SASC 12; Deppeler, In the Matter of Deppeler [2017] FCA 768; Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; Minister for Indigenous Affairs v MGD Foundation Ltd (2017) 250 FCR 31, considered.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MACKS
[2025] SASC 4
Civil: Application

STEIN J: Mr Macks was a registered liquidator from and after 28 March 1990. On 19 February 2021, in circumstances which I will address below, Mr Macks’ registration as a liquidator was suspended for a period of three years, to 18 February 2024. On 28 March 2023, prior to the end of the suspension period, Mr Macks’ registration as a registered liquidator expired. Mr Macks applied to the Australian Securities and Investments Commission (“ASIC”) for the renewal of his registration, but ASIC refused that application. Mr Macks has applied to the Court for orders for an extension of time within which to lodge an application for his registration as a liquidator to be renewed and for an order that the Court direct ASIC to do whatever is necessary to enable Mr Macks to make his application for renewal through ASIC’s online portal.
For the reasons below, I conclude that the Court has the power to grant an extension of time and I have determined to exercise my discretion to grant such an extension.
Background
The circumstances giving rise to Mr Macks’ application are as follows.
On 28 February 2020, Mr Macks applied for renewal of his registration as a liquidator for the period ending 27 March 2023. That application was granted by ASIC. The orders suspending Mr Macks’ registration were made after Mr Macks’ registration was renewed and had the effect of suspending Mr Macks for a period which extended beyond his then current registration.
While suspended, Mr Macks continued to undertake the necessary hours of continuing professional education, continued to lodge annual liquidator returns and paid an annual industry funding levy. However, Mr Macks was unable to obtain professional indemnity and fidelity insurance[1] because he was unable to source insurance cover which otherwise compiled with the requirements of the ASIC Regulatory Guide 258 – Registered Liquidators: Registration, disciplinary actions and insurance requirements (“RG 258”).
[1] For simplicity, I refer to professional indemnity and fidelity insurance simply as “insurance” throughout these reasons.
Mr Macks’ attempts to obtain insurance commenced in February 2021 when Mr Macks contacted his insurance broker to renew his and his firm’s insurance that was due to expire at the end of February 2021. Mr Macks’ broker informed Mr Macks that they could not locate any insurer willing to provide cover to him for the period of his suspension irrespective of whether it related to future or historical claims concerning his conduct as a liquidator. Mr Macks was informed that his existing insurer, Liberty, would only extend cover to Mr Macks’ firm and its employees if an endorsement or exclusion in respect of Mr Macks was inserted into the policy. In early March 2021, another broker informed Mr Macks that of the four insurers offering insurance policies to registered liquidators which were compliant with the requirements of RG258, one was Liberty and the remaining three would not provide cover to Mr Macks while suspended and/or were not willing to write new business.
It was not in dispute that Mr Macks’ firm was thereafter provided with cover by Liberty and such cover excluded Mr Macks. The policies taken out by Mr Macks and his firm were “claims made” policies, that is, the policies would respond to claims made during the period of the policy. The insurance policy issued by Liberty, with an effective date of 28 February 2021 (and the yearly policies thereafter), provided relevant insurance for Mr Macks’ firm (Macks Advisory) and the firm’s employees, including Mr Burford, a registered liquidator. The policy excluded cover for Mr Macks. Mr Macks accepts that the effect of the exclusion was that, for the period of Mr Macks’ suspension, he did not hold cover for potential claims which may have been made during the policy period arising from his past conduct as a registered liquidator prior to the date he ceased to practice as a registered liquidator.
On 11 January 2023, Mr Macks suffered a heart attack, was hospitalised and underwent surgery. Thereafter, he underwent about six months of rehabilitation and during that period took leave from Macks Advisory and did not engage in his practice other than as absolutely necessary to run that practice.
In the period leading up to the expiry of his registration in March 2023, Mr Macks made further enquiries to determine whether or not any insurer would be willing to provide cover for the remaining period of his suspension. Mr Macks’ broker was unable to locate any insurer willing to do so. However, one insurer was willing to review the endorsement excluding Mr Macks from cover after the end of his suspension in 2024.
Prior to Mr Macks’ registration as a liquidator expiring on 28 March 2023, he endeavoured to renew his registration by lodging, on 17 February 2023, his renewal via the online portal.
On 9 March 2023, ASIC asked Mr Macks to provide ASIC with a certificate of currency of insurance cover. On 14 March 2023, Mr Macks sent to ASIC a copy of the then current insurance policy for the period February 2023 to February 2024 and drew attention in the cover email to the endorsement which specifically excluded Mr Macks. On 17 March 2023, ASIC responded by email in which the writer expressed concern about the endorsement to the policy and asked why Mr Macks believed he had adequate and appropriate insurance to cover him for the work he previously undertook as a registered liquidator prior to his suspension as a registered liquidator.
On 24 March 2023, Mr Macks responded, among other things, to say that he had made enquiries of insurers and all options were not RG258 compliant; there were only a limited number of insurers on the market which were RG258 compliant, that Mr Macks had been in contact with Liberty which advised it would be in a position to positively review the insurance endorsement once the period of suspension expired. Mr Macks enclosed a proposed draft order seeking reinstatement of Mr Macks’ registration from the date of the order and asked ASIC to consent to such an order.
On 27 March 2023, ASIC wrote to Mr Macks to inform him that ASIC had refused to renew his registration as a liquidator. In the letter, ASIC stated it was not satisfied that Mr Macks maintained adequate and appropriate professional indemnity or fidelity insurance because he was specifically excluded from cover under the policy. ASIC further asserted that it did not have a discretion to renew a registration if aspects of the relevant requirements were not met and, if there were such a discretion, that discretion would not be exercised in any event. ASIC emphasised that the legislation demonstrated the importance of insurance, that a registered liquidator without professional indemnity insurance was subject to a strict liability offence and, consequently, granting the application could result in a contravention of the offence provision by Mr Macks. ASIC’s letter stated that ASIC would not agree to the request for consent to the draft order at that time and asked Mr Macks to approach ASIC for a decision about the proposed orders closer to the time they were to be filed. The letter informed Mr Macks of his rights of review.
On 28 March 2023, as a consequence of ASIC’s decision, Mr Macks’ registration expired.
In February 2024, Mr Macks completed and lodged with ASIC an application to lift the suspension of his registration as a liquidator. Mr Macks paid the relevant fee. Mr Macks was informed his application for reinstatement had been referred internally for consideration. On 29 February 2024, Mr Macks provided to ASIC correspondence from Liberty which confirmed that following the lifting of his suspension, the exclusion in the insurance policy would be removed in full subject to no claims or incidents and with a $50,000 excess to be applied. Mr Macks confirmed that no claims had been made against him, nor were there any pending. Mr Macks suggested that, further to the correspondence in 2023, he apply to the Supreme Court for orders for renewal of his registration.
On 1 March 2024, Mr Macks was informed by letter that ASIC updated the Liquidator Register to record the suspension of his previous registration and the Liquidator Register was automatically amended to account for suspensions of a defined period. Accordingly, if Mr Macks were still registered, then on the expiry of the Court imposed suspension, the Register would have been amended to change his registration status. The letter informed Mr Macks that ASIC would not be convening a committee to consider his application to lift his suspension on the basis he was no longer registered at the date of his application. Mr Macks was informed that he could make a new application for registration as a liquidator.
In May 2024, Mr Macks’ solicitors wrote to ASIC enclosing a proposed application for an extension of time for the renewal of his registration and requesting ASIC’s consent. ASIC did not consent on the basis Mr Macks had already applied for a renewal, that application was refused, and the appropriate course was for Mr Macks to make a new application to be registered as a liquidator.
Mr Macks’ application to ASIC to lift his suspension in February 2024 was in fact unnecessary because once the period of court ordered suspension expired, the register would have been updated without need for any action by Mr Macks.
Since 7 July 1993, Mr Macks has been a registered trustee for the purposes of undertaking bankruptcy appointments. On 22 February 2021, as a result of his suspension of registration as a liquidator, the Inspector-General in Bankruptcy suspended Mr Macks’ registration as a trustee for three years through to 22 February 2024. On 7 July 2023, during the period of his suspension, Mr Macks’ registration as a trustee fell due for renewal. Mr Macks applied for the renewal of his registration which the Australian Financial Security Authority (“AFSA”) granted on 10 July 2023. In February 2024, in anticipation of his suspension of registration concluding, Mr Macks corresponded with AFSA seeking confirmation the suspension would be lifted. On 26 February 2024, after correspondence in relation to clarity around insurance cover, AFSA confirmed the expiry of the suspension of Mr Macks’ registration as trustee and sought further information concerning the satisfaction of professional indemnity and fidelity insurance requirements under the Bankruptcy Act 1966 (Cth). Further correspondence between AFSA and Mr Macks included information confirming the renewal of Mr Macks’ professional indemnity and fidelity insurance policy from 30 March 2024 to 28 February 2025 on terms including an endorsement indicating cover for any appointments as trustee commencing after 20 February 2024. Mr Macks was informed that his suspension had been lifted.
Mr Macks has not received any further correspondence from AFSA and he remains on the AFSA Register of Trustees as a registered trustee.
Until such time as Mr Macks’ registration is reinstated, he is unable to resume practice as a liquidator or obtain insurance to do so.
Circumstances of suspension
The circumstances which gave rise to Mr Macks’ suspension are set out in the decision of S Doyle J (as his Honour then was) in Australian Securities and Investment Commission v Macks (No 5).[2] Following proceedings by Mr Viscariello against Mr Macks concerning Mr Macks’ role as liquidator of two companies of which Mr Viscariello was a director, ASIC had commenced an investigation into Mr Macks’ conduct as liquidator. Justice S Doyle made findings in respect of Mr Macks’ conduct following the inquiry. Justice S Doyle in essence was satisfied that Mr Macks had fabricated documents and submitted them to ASIC dishonestly and for the purposes of deceiving ASIC.
[2] Australian Securities and Investment Commission v Macks (No 5) [2021] SASC 12.
Submissions on penalty were heard in December 2020. ASIC sought orders to the effect that Mr Macks be removed from the register of liquidators and be prohibited from applying to be registered for seven to 10 years. During submissions, Mr Macks submitted that the orders sought by ASIC were tantamount to a life ban.
Justice S Doyle delivered reasons for his decision on penalty on 12 February 2021. His Honour considered Mr Macks’ conduct serious but that there was nothing systematic or repetitious in that conduct and Mr Macks had not subsequently engaged in further misconduct. There was no misappropriation of funds or any direct financial gain. Justice S Doyle was satisfied Mr Macks was otherwise a person of good character and professional standing and had previously had an unblemished career and that there was little, if any, risk Mr Macks would ever again engage in such dishonest conduct.
Justice S Doyle observed that a period of cancellation or suspension of the length sought by ASIC would operate particularly harshly and would effectively end Mr Macks’ career and likely have very significant ramifications for the continuation of his firm and for its employees. His Honour therefore did not accept ASIC’s position and instead imposed a penalty on Mr Macks of a period of suspension of three years.
Final orders were made on 19 February 2021.
Regulatory regime
To assist in understand the parties’ submissions, I set out below a summary of the regulatory framework for registration and renewal of registration of liquidators.
The Insolvency Practice Schedule (Corporations) (“IPSC”) is contained in Schedule 2 to the Corporations Act 2001 (Cth). The IPSC addresses, among other things, the registration of liquidators and insurance requirements. The IPSC sets up a process whereby an individual may apply to ASIC to be registered as a liquidator. A committee will then assess the application against specified criteria. Those criteria include the applicant’s general fitness, qualifications and conduct and whether the applicant will take out appropriate insurance. Registration is for a period of three years.
The committee must decide the applicant should be registered as a liquidator if satisfied of specified matters.[3] Those matters include that the applicant will take out “adequate and appropriate professional indemnity and fidelity insurance against the liabilities the applicant may incur working as a registered liquidator”. This phrase is repeated frequently throughout the IPSC. I will refer to this compendious phrase by a shorthand reference to “adequate and appropriate insurance”. I address the proper meaning of the phrase separately below.
[3] Corporations Act 2001 (Cth), sch 2 s 20-20(4) (“IPSC”).
The committee may decide the applicant should be registered even if the committee is not satisfied of specified matters, [4] provided the committee is satisfied the applicant would be suitable to be registered if the applicant complied with conditions specified by the committee.[5] Accordingly, the committee has an obligation to register if certain matters are met but a discretion to nevertheless register if not satisfied of certain of the prescribed requirements. If the committee is not satisfied the applicant will take out adequate and appropriate insurance as required by s 20-20(4)(b)(i), there is no discretion, and the committee must refuse the application for registration.
[4] IPSC, s 20-20(4)(a), (e), (f) or (i).
[5] IPSC, s 20-20(5).
If the committee decides an applicant should be registered and the applicant produces evidence in writing to ASIC that the applicant has taken out adequate and appropriate insurance, then ASIC must register the applicant as a liquidator.[6]
[6] IPSC, s 20-30.

Division 25 of the IPSC obliges a registered liquidator to “maintain” adequate and appropriate insurance. It is an offence if a liquidator fails to comply with the requirement.[7]
[7] IPSC, s 25-1(4). The penalty depends on whether the failure is intentional or reckless or otherwise.
Division 30 of the IPSC obliges a registered liquidator to lodge annual returns. A return must be in the approved form and include evidence the person has, during the whole of the period of the year during which the person was registered as a liquidator, maintained adequate and appropriate insurance.[8]
[8] IPSC, s 30-1(3).
Division 35 of the IPSC requires a registered liquidator to give notice of significant events. One such significant event is the liquidator ceasing to have adequate and appropriate insurance.[9] A registered liquidator is also required to lodge a notice if information in an annual liquidator return becomes inaccurate in a material particular.[10] A notice must be lodged within 10 business days after the registered liquidator could reasonably be expected to be aware the event had occurred and it is an offence if a person recklessly or intentionally fails to comply with the requirement.
[9] IPSC, s 35-1(1)(e).
[10] IPSC, s 35-5(1).
ASIC may suspend the registration of a person as a liquidator if they cease to hold adequate and appropriate insurance.[11] ASIC may also cancel the registration of a person as a liquidator if they cease to have adequate and appropriate insurance.[12] ASIC has power to give a show cause notice for a range of reasons including where ASIC believes the liquidator has ceased to have adequate and appropriate insurance.[13]
[11] IPSC, s 40-25(1)(b).
[12] IPSC, s 40-30(1)(b).
[13] IPSC, s 40-40(1)(d).
Section 20-70 of the IPSC provides:
(1)An individual may apply to ASIC to have the individual’s registration as a liquidator renewed.
(2)The application must be lodged with ASIC in the approved form:
(a) if the Court makes an order under subsection (3) – on or before the time specified in the order; or
(b) otherwise – before the applicant's registration as a liquidator ceases to have effect.
Note: Fees for lodging documents and late lodgement fees may be imposed under the Corporations (Fees) Act 2001.
(3)The Court may, on application, extend the time within which the individual may apply to ASIC to have the individual's registration as a liquidator renewed.
(4)The application for renewal is properly made if subsection (2) is complied with.
Section 20-75 of the IPSC provides:
(1)On application under s 20-70, ASIC must renew the registration of the applicant as a liquidator if:
(a)     the application is properly made;
(b)     the applicant has produced evidence in writing to ASIC that the applicant maintains:
(i)adequate and appropriate professional indemnity insurance; and
(ii)adequate and appropriate fidelity insurance;
against the liabilities that the applicant may incur working as a registered liquidator; and
(c)     the applicant has complied with any condition dealing with continuing professional education to which the applicant is subject during the applicant’s current registration.
ASIC renews the registration by entering or maintaining on the Register of Liquidators the prescribed details relating to the applicant. Renewed registration is subject to the current conditions imposed on the registered liquidator.[14] After renewing the registration of a person as a liquidator, ASIC must give the person a Certificate of Registration. Registration has effect for three years.[15]
[14] IPSC, s 20-75(3).
[15] IPSC, s 20-75(6).
Section 20-5(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (“Rules”) provides that it is a condition of registration that a registered liquidator undertake at least 120 hours of continuing professional education during the three year period the person is registered as a liquidator. Section 20-5(4) makes it a condition of the registration of any person whose registration as a liquidator has been suspended that the person must, during the suspension period, maintain adequate and appropriate professional indemnity and fidelity insurance against the liabilities the person may incur as a result of work carried out as a registered liquidator before the suspension takes effect.
After the court orders were made, Mr Macks received correspondence from ASIC setting out his obligations during his suspension including reference to the requirements in s 20-5 of the Rules.[16]
[16] FDN 84 - Affidavit of Peter Ivan Macks made on 15 October 2024, PIM-2 at 28.
I address separately below the proper interpretation of relevant aspects of the statutory provisions.
Regulatory Guide 258
ASIC’s RG 258 issued in March 2017 sets out ASIC’s policy on adequate and appropriate insurance. As at 1 March 2017, RG 258.139 provided that if a committee or ASIC suspended registration, the liquidator must, during the period of suspension, maintain adequate and appropriate personal injury and fidelity insurance against the liabilities that may be incurred as a result of work carried out as a registered liquidator before the suspension took effect.[17]
[17] Insolvency Practice Rules (Corporations) 2016 (Cth), r 20-5(4) (“Rules”).
Section E of RG 258 articulated the purpose of insurance requirements being to ensure, as far as possible, that funds are available to compensate claimants for loss suffered because of inadequate or improper performance of duties or other legal obligations by a registered liquidator or their staff. ASIC will apply its view of what constitutes adequate and appropriate insurance. However, registered liquidators are primarily responsible for assessing what is adequate and appropriate insurance for their circumstances. Whether a professional indemnity insurance policy is adequate and appropriate was said to depend on a number of matters, including the amount of the cover; the scope of the cover; the persons covered by the policy; any exclusions; and the provision of retroactive cover. To achieve the policy objectives of the insurance requirements that RG 258.205 stated, among other things, if a liquidator was ceasing to practice then run off cover was to be obtained unless claims for previous work would otherwise be covered (such as by a firm acquiring the business or by a previous firm covering claims arising from the liquidator’s conduct during their time at the firm).
RG 258.206 referred to the requirement on a registered liquidator to maintain adequate and appropriate insurance.[18] RG 258.208 stated that it was also a condition on the registration of any person whose registration has been suspended that the person must, during the period of suspension, maintain adequate and appropriate insurance against the liabilities the person may incur as a result of work carried as a registered liquidator before the suspension.
[18] IPSC, s 25-1.
RG 258.210 stated that ASIC would interpret and apply the insurance requirements to maximise their potential to achieve the policy objective having regard to practical considerations, including the availability and cost of insurance. RG 258.218 recognised that cyclical changes in the insurance market could affect the availability and scope of insurance for registered liquidators and stated that ASIC would take note of fluctuating market conditions and availability of insurance and may update ASIC’s policy as needed to reflect such changes.
RG 258.219 stated that a liquidator should determine what is adequate and appropriate insurance and review business operations and insurance needs each year having regard to the liquidator’s particular risk profile.
RG 258.225 set out a number of topics about which applicants for registration may be asked prior to registration. Those topics included whether the insurance provides retroactive cover and whether the insurance provides automatic run off cover in the event of external administration or insolvency of the liquidator or the firm and, if so, for how many years after expiry of the policy period.
RG 258.231 stated that ASIC expects liquidators to take personal responsibility for ensuring, among other things, insurance remains adequate and appropriate at all times.
Among other topics relevant to the adequacy and appropriateness of insurance cover, RG 258.250 stated that if the insurance policy will form the latest in an immediately preceding set of continuous claims made and notified professional indemnity insurance policies, the retroactive date should be the same or proceed the retroactive date specified in the first such policy in the series. Otherwise, the new insurance policy will need to have a retroactive date earlier than the date on which the liquidator started providing services as a registered liquidator; at least seven years before the beginning of the period of insurance (or an unlimited retroactive period). RG 258.254 recognised the importance of insurance cover for potential civil liability during the whole period a liquidator or the liquidator’s staff perform work in connection with the liquidator’s activities as a registered liquidator. Consequently, when seeking to effect a new policy or changing insurer, RG 258.255 indicated the liquidator should review insurance requirements to ensure continuity of cover in respect of past circumstances that occurred during the period of the former policy which might lead to a claim not previously reported.
Where a liquidator moves firms, the liquidator is responsible for insuring against the ongoing risk of claims arising from prior conduct.[19] Where a registered liquidator retires or ceases practice, if claims made in connection with work performed before they retired will not be covered by future insurance policies, the registered liquidator must use their best endeavours to obtain run off cover each year for a reasonable commercially available period of time.[20]
[19] RG 258.282.
[20] RG 258.283.
RG 258 defined “retroactive cover” as cover with a claims made and notified policy that extends to the past to cover acts, errors or omissions that occurred or were committed during a period of time before the policy was obtained but after the retroactive date. “Run off cover” was defined as insurance cover in respect of claims made after the insurance policy has ended that have arisen from acts, errors or omissions of an accused during the period of insurance cover. In a claims made and notified policy, run off cover extends the period for reporting covered claims beyond the normal policy period. While run off cover can be provided as a standard term of a policy, known as automatic run off cover, it is more commonly a standalone policy that a policy holder can buy each year on an annual renewal basis once they cease to operate their business.
Statements about insurance requirements in RG 258 as in effect at October 2024 are largely similar to the superseded RG 258 issued in March 2017.
Mr Macks’ submissions
The parties filed written submissions and addressed further argument during the hearing.
Mr Macks submitted that throughout the period of his suspension, Mr Macks has acted in compliance with the suspension order and not accepted any appointments or worked as a liquidator.
Mr Macks submitted that it is an appropriate exercise of the Court’s discretion to grant an extension of time to permit him to apply for renewal of his registration given the circumstances and the manner in which ASIC previously dealt with the registration and its renewal, which was described as “contradictory and generally misconceived”.
Mr Macks contended the considerations relevant to the exercise of discretion to grant an application for an extension of time are analogous to the considerations which apply to a grant of an extension of time to lodge an appeal. They include the length of the delay, whether there is any prejudice to any other party and whether there is an acceptable explanation for the delay.
Mr Macks made submissions about the circumstances leading to his application for renewal of registration as set out above. Mr Macks’ insurance broker, in correspondence with Mr Macks, had taken the position that ASIC’s standards are not achievable, there is no relevant product in the market, and ASIC does not consult with the insurance industry. Mr Macks contended that he exhausted all efforts to attempt to locate suitable insurance and no such insurance exists in the Australian market. Mr Macks was unable to comply with any requirement for insurance for the period of suspension for reasons outside of Mr Macks’ control. As a consequence of the insurance market, Mr Macks was only able to maintain adequate and appropriate insurance cover for his firm and employees on terms excluding him personally from any cover. No claims were made against him or his firm during the period of suspension in respect of his conduct as a liquidator in any matter.
Mr Macks seeks the extension of time on the basis that it is only since the period of his suspension has expired that he is able to meet the requirements imposed by s 20-75(1)(b) of the IPSC to the extent they previously applied. The endorsement excluding Mr Macks from cover will be removed in full following his renewal or reinstatement as a liquidator. As long as that endorsement remains, Mr Macks cannot obtain insurance or resume practise as a liquidator.
Mr Macks referred to the letter from ASIC dated 24 February 2021 sent to him after the suspension order was made. That letter referred to Mr Macks’ ongoing obligations under r 20-5 of the Rules including the obligation to maintain adequate and appropriate insurance “against the liabilities that you may incur as a result of work carried out as a registered liquidator before the suspension took effect”. Mr Macks contended that letter reflected the correct position and was consistent with the clear wording of the legislation that only run-off cover was required and such cover was required only by reason of r 20-5 of the Rules. Mr Macks pointed to the absence of any reference by ASIC to s 25-1(1) or any similar requirement in the letter.
Mr Macks contended that any alleged breach of r 20-5 of the Rules did not comprise an offence, nor have any relevance to a renewal application pursuant to s 20-75 of the IPSC.
Mr Macks contended there was an obvious temporal divergence between the requirement sought to be imposed by r 20-5(4) of the Rules, directed to run off cover, and s 25-1(1) of the IPSC addressing liabilities that may be incurred by a liquidator continuing to work as a registered liquidator. Mr Macks submitted s 25-1(1) cannot apply during a period of suspension. He argued it cannot be the case that an obligation directed towards liabilities incurred in respect of work being undertaken during the period of registration could continue to apply during a period of suspension during which period, as a consequence of suspension, no work is being undertaken as a registered liquidator. Mr Macks contended it would be a nonsense to impose any requirement to maintain insurance against liabilities incurred while continuing to work as a registered liquidator upon suspended liquidators who are thus prohibited from undertaking any such work for the duration of their suspension. Mr Macks contended that, properly construed, r 20-5(4) must be the only insurance requirement applying during a period of suspension. He submitted it could not be the case that the requirements of both s 25-1(1) of the IPSC and r 20-5(4) of the Rules were intended to apply simultaneously. If so, it would impose an additional burden upon a person whose registration had been suspended over and above that of a registered practitioner. Mr Macks contended that the requirement in s 25-1(1) requiring insurance for liabilities which may be incurred working as a registered liquidator can have no practical application for persons whose registration is suspended when they apply for renewal. Such a construction would preclude anyone from serving a period of suspension from being able to renew their registration. Further, Mr Macks pointed to the outcome being precisely the opposite of that intended by S Doyle J, that is, to avoid the requirement for Mr Macks to have to re-apply to ASIC for registration.
Mr Macks contended that ASIC’s assertion it would have cancelled Mr Macks’ registration if it had known of his insurance position at an earlier time reflected a misapprehension as to the correct position. The unintended consequence of Mr Macks’ inability to comply with the relevant insurance requirements would effectively act as a cancellation of his registration which was precisely the outcome which ASIC sought before S Doyle J but which his Honour ultimately sought to avoid. Mr Macks also contrasted ASIC’s position with that taken by AFSA in relation to Mr Macks’ registration as a trustee in bankruptcy.
In circumstances where Mr Macks’ inability to previously satisfy the insurance requirements was through no fault of his own, Mr Macks submitted this is an appropriate case for the Court to exercise the discretion to extend the time for him to make an application for renewal. Mr Macks contended there was no prejudice to any party if an extension were to be granted and none had been identified.
During argument, among other things, Mr Macks’ counsel responded to submissions contained in ASIC’s written submissions filed in advance of the hearing. In ASIC’s written submissions, ASIC took the position that if Mr Macks wished to challenge ASIC’s delegate’s decision to refuse the application to renew his registration as a liquidator, he had the right to seek a merits review in the Administrative Appeals Tribunal. Accordingly, ASIC’s written submissions put the position that the application must proceed on the basis the delegate’s decision not to renew Mr Macks’ registration stood as an unchallenged exercise of ASIC’s decision-making power under the Act. Thus, ASIC contended the extension of time sought was beyond the power of the Court because a grant would constitute acceding to a merits review of the decision not to review the registration.
During the hearing, Mr Macks confirmed there he did not challenge the original decision of ASIC, nor did his application constitute any merits or judicial review of that decision, nor was it an attempt to revoke the decision made by ASIC in March 2023. Mr Macks only seeks an extension of time of the period in which Mr Macks can lodge his renewal application.
Mr Macks contended there was nothing that precluded ASIC from re-exercising the power conferred by s 20-75 of the IPSC to determine a further renewal application if the Court were to grant the extension. The fact it had already made a decision in 2023 would not preclude it from making a new decision afresh. For this submission, Mr Macks relied on decisions addressing s 33(1) of the Acts Interpretation Act 1901 (Cth) (“Interpretation Act”) which I address below.
ASIC’s submissions
ASIC opposed the orders sought essentially on the basis that the extension of time sought is inconsistent with the legislative regime that mandates a liquidator maintain adequate and appropriate insurance during a period of suspension and further, that an application for extension should not be granted pursuant to s 20-70(3) of the IPSC in the present circumstances.
ASIC referred to correspondence sent by ASIC to Mr Macks in advance of the hearing of his application which set out ASIC’s view that Mr Macks was required during his period of suspension to disclose to ASIC that he did not have professional indemnity insurance in place but that he did not do so and, if Mr Macks had disclosed that position, ASIC would have considered its powers to cancel Mr Macks’ registration or issue a show cause notice. ASIC relied upon that non-disclosure as a reason why the Court ought not exercise any discretion in Mr Macks’ favour.

ASIC described the argument that an extension of time is required to give effect to the intention of the suspension orders made by S Doyle J as misconceived. ASIC contended that Mr Macks knew he could not obtain insurance shortly after the suspension orders were made and Mr Macks’ non-compliance would likely have seen his registration cancelled. ASIC contended that it can be inferred that the process Mr Macks commenced to obtain insurance for his period of suspension was underway before ASIC’s letter of 24 February 2021. The policy which contained the specific exclusion of Mr Macks and which exclusion remained in subsequent policies was taken out on 5 March 2021. ASIC submitted that Mr Macks did not raise any difficulty in complying with the requirements of suspension, including as to insurance, when he adopted the position that the appropriate penalty was a period of suspension in the penalty hearing. Further, Mr Macks did not return to court when, on ASIC’s position, it became apparent he would not be able to obtain insurance he was required to hold while suspended. Accordingly, ASIC contended Mr Macks could not assert he had been prejudiced as a result of a failure he did not raise contemporaneously with the penalty hearing. ASIC submitted that even if the difficulty of obtaining insurance had been raised at the penalty hearing or on a re-opening application, it would not have led to a different outcome because the powers of the Court in regulating the conduct of liquidators do not extend to a power to remove the requirement for a suspended liquidator to maintain insurance. Accordingly, Mr Macks would have been required to submit a new application for registration in any event.
ASIC contended that as a matter of proper power and construction, s 20-70(3) of the IPSC did not permit an extension of time in the present circumstances. On ASIC’s submissions, to permit Mr Macks an extension of time 21 months later would permit a subversion of the statutory scheme. ASIC submitted it would be different for the Court to permit a liquidator to not go through a new registration process when a filing deadline had been missed through honest inadvertence where the liquidator could have satisfied the requirements for renewal at the time of renewal.
ASIC’s position was that a liquidator whose registration is suspended remains a registered liquidator subject to the reporting and insurance requirements of a registered liquidator and the requirements of a registered liquidator to maintain insurance during suspension are made clear by r 20-5(4) of the Rules, which is subordinate to s 20-35(1) of the IPSC. ASIC submitted the condition on the registration of any person whose registration as a liquidator has been suspended that the person must, during the period of the suspension, maintain adequate and appropriate insurance against the liabilities the person may incur as a result of work carried out as a registered liquidator before the suspension takes effect is consistent with the “claims made” nature of insurance where cover is for claims made and notified in a given policy year which may arise from events which occurred in earlier years. ASIC’s position is there is no statutory uncertainty or inconsistency and the insurance required is a backward-looking policy regardless of whether the liquidator is actively practising.
On ASIC’s position, if registration is not renewed, the individual ceases to be registered as a registered liquidator and the only path to registration is to apply again through the registration process.
If the Court’s discretion were enlivened, ASIC contended it should not be exercised in Mr Macks’ favour as he had not complied with his insurance obligations as a registered liquidator through the period of his suspension and did not make contemporaneous disclosure to ASIC.
If Mr Macks had disclosed the lack of insurance, ASIC submitted it would have considered either cancelling Mr Macks’ registration or issuing a show cause notice. ASIC criticised Mr Macks on the basis he did not return to Court to address any perceived impact on his suspension resulting from his inability to obtain insurance.
ASIC did not accept the Court could waive the insurance requirements and contended Mr Macks could not now complain based on the intent of the suspension orders or assert ASIC had acted unreasonably when Mr Macks did not raise the issue at the earliest opportunity.
ASIC considers the annual returns Mr Macks lodged were incorrect. On 17 February 2023, Mr Macks, when seeking renewal of his registration, responded “yes” to a question whether he maintained adequate and appropriate professional indemnity insurance against the liabilities that may be incurred working as a registered liquidator, as required by s 25-1 of the IPSC. The enclosed confirmation of cover did not disclose any relevant limitations or exclusions. Mr Macks answered “yes” to the question “Does the insurance policy insure you and your firm against claims relating to all services you wish to provide in the course of your business in connection with liabilities that you may incur working as a registered liquidator?”. The first occasion on which ASIC became aware that Mr Macks was not covered by any insurance was by email dated 14 March 2023 which identified there the specified person exclusion for Mr Macks and attached a copy of the full policy.
ASIC contended that while s 45-1 of the IPSC is not directly applicable, the factors in it should, by analogy, guide the Court in the exercise of its discretion. Where a liquidator is seeing an indulgence from the Court, ASIC submitted it is highly pertinent whether the liquidator had properly performed their duties. ASIC submitted the effect of the application, if granted, would be to countenance Mr Macks having been non-compliant in circumstances where failure to maintain adequate and appropriate insurance is an offence, a notifiable matter and a show cause event; and non-disclosure may be an offence; Mr Macks had filed incorrect annual returns and the lack of insurance was only identified because the ASIC officer probed otherwise incorrect information provided by Mr Macks. Further, Mr Macks created risks as had not been insured for matters where he acted as liquidator prior to his suspension or for his work as an employee. ASIC regarded the fact those risks had not resulted in any known loss as a matter of mere good fortune. On ASIC’s position, circumventing the requirements for renewal and Mr Macks’ failure to seek review militated against the exercise of the Court’s discretion in Mr Macks’ favour.
During the hearing, counsel for ASIC did not take issue with Mr Macks’ submissions concerning the effect of s 33(1) of the Interpretation Act. Counsel accepted that ASIC could consider a further application with the proviso that, if that were to occur after the date of cessation of registration, the only option would be to apply to Court to use the extension of time provision to obtain the necessary extension.
Consideration
The first issue for determination is whether the Court has power to grant an extension of time.
If so, the second issue is whether I should grant an extension of time.
Does the Court have the power to grant an extension of time?
Judicial consideration of the extension of time provision
The power of the Court to grant an extension of time within which an individual may apply to ASIC to have their registration as a liquidator renewed is not expressly fettered or conditioned upon any specified factors.
In Deppeler, In the Matter of Deppeler (“Deppeler”),[21] O’Callaghan J addressed an application for an extension of time by liquidators who had inadvertently failed to renew their registration within time. Justice O’Callaghan regarded the considerations for an extension of time as analogous to those applying to the application for an extension of time within which to appeal, including the length of the delay, any acceptable explanation for delay, and whether there is any prejudice to any other party.[22]
[21] Deppeler, In the Matter of Deppeler [2017] FCA 768.
[22] Deppeler, In the Matter of Deppeler [2017] FCA 768 at [21] (O’Callaghan J).
Counsel could not locate any other authorities addressing the extension of time provision and both parties adopted O’Callaghan J’s approach.
Does ASIC’s prior decision preclude an extension of time?
As set out above, in response to the position set out in ASIC’s written submissions concerning Mr Macks’ failure to seek judicial review in 2023, Mr Macks’ counsel confirmed Mr Macks did not seek judicial review and relied on the Interpretation Act in support of the submission that, if an extension were granted, ASIC could make a fresh decision on the application. ASIC did not take issue with those submissions, subject to questions of the proper interpretation of the legislation.
Section 33(1) of the Interpretation Act provides that where an Act confers a power or function or imposes a duty, the power may be exercised and the function or duty must be performed from time to time as occasion requires.
In Minister for Immigration and Border Protection v Makasa,[23] the High Court explained that the section was enacted against the background of a common law doctrine to the effect that the first exercise of a power conferred by statute exhausted that power. Section 33(1) of the Interpretation Act counteracts the doctrine by requiring the interpretation of such a provision as authorising the power it confers to be re-exercised from time to time. Section 33(1) of the Interpretation Act does not alter the incidence of the power contained in the provision conferring that power.[24]
[23]Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430.
[24] Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 at [45] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).
In Minister for Indigenous Affairs v MGD Foundation Ltd,[25] Mortimer J (as her Honour then was) considered that the purpose of s 33(1) was to make clear that the presumptive position is that powers, functions and duties can be exercised repeatedly rather than simply once, removing the need for the words “from time to time” to be expressly included whenever a power, function or duty is conferred by legislation. While repeated exercise of a power will usually be in relation to different occasions, persons and subject matters, there can, in some circumstances, be a repeated exercise or performance concerning the same person or subject matter.[26] Section 33(1) does not alter the character or the power or function to be exercised but concentrates on when such a power may be exercised or a function or duty performed.[27]
[25] Minister for Indigenous Affairs v MGD Foundation Ltd [2017] FCAFC 37; (2017) 250 FCR 31.
[26] Minister for Indigenous Affairs v MGD Foundation Ltd [2017] FCAFC 37; (2017) 250 FCR 31 at [136] (Mortimer J, Perry J agreeing).
[27] Minister for Indigenous Affairs v MGD Foundation Ltd [2017] FCAFC 37; (2017) 250 FCR 31 at [169] (Mortimer J, Perry J agreeing).
It follows that if I grant the extension sought, ASIC can address a fresh application made by Mr Macks on material provided in support despite ASIC having made a decision on Mr Macks’ renewal application in 2023.
Time at which the conditions in s 20-70 are to be considered
One of the issues which arose in argument is whether, in a context in which the Court grants an extension of time, ASIC’s consideration of the application is limited to the circumstances in existence as at the cessation of the applicant’s registration or whether circumstances arising between the end of the registration and the date of the grant of the extension of time are to be considered by ASIC in addressing a renewal application.
I understood ASIC’s position to be that ASIC must address an application on the basis of circumstances in existence at the end of the period of registration. On that position, if a liquidator could not meet the requirements for re-registration as at the date of cessation of the registration that could not be cured by an extension of time because ASIC, in any event, would be required to consider the circumstances in existence before the registration expired, rather than the circumstances in existence as at the date of the renewal application.
Mr Macks’ counsel contended that s 20-75(1) had to be read in the context of s 20-70, which enables an extension of time. It follows that the application referred to in s 20-75(1) is the application made at the time of the extension, and accordingly it is then necessary to satisfy the provisions at the time the application is made pursuant to the extension of time.
It follows on ASIC’s position that an extension of time could only have any practical utility if the application was made in circumstances in which the failure to lodge the application prior to the cessation of the period of registration arose from inadvertence alone and the liquidator otherwise had satisfied the adequate and appropriate insurance and continuing professional development obligations. In any other case, an extension would have no practical utility because the applicant would not be in a position to achieve the minimum requirements of s 20-75 as at the date of the cessation of registration. This interpretation would thus reduce the practical effect of the power to order an extension of time. I am not persuaded that this is the preferrable construction for several reasons. First, the power to grant an extension of time is not expressly circumscribed or fettered. Second, ASIC’s position, with which Mr Macks agrees, is that ASIC does not have any discretion to renew a registration if the preconditions set out in s 20-75 are not met. It follows that if a liquidator cannot meet the preconditions in s 20-75 as at the date of expiry of the liquidator’s registration, even if to an inconsequential degree and through no fault of the liquidator, the liquidator would be required to undergo the more extensive and onerous process of application for registration afresh. As an example, if a liquidator failed to comply with one hour of continuing professional education prior to the expiry of the period of registration as a consequence of events beyond the liquidator’s control, such as ill health, on ASIC’s interpretation, that liquidator’s only option would be to apply for registration afresh. This would follow from the argument that even if an extension of time were to be granted, ASIC could not approve the liquidator’s renewal of registration because ASIC would have to consider the application as at the date the registration expired. I am not persuaded that was the intention of the legislature.
In my view, when s 20-70 and s 20-75 are read together, if the Court grants an extension of time, ASIC must consider the application thereafter made pursuant to the extension on the basis of circumstances in existence as at the date the application is made in conformity with the Court order.
Proper interpretation of insurance requirements
I turn now to consider the legislative requirements for insurance to address ASIC’s contention that a grant of an extension of time would permit Mr Macks to avoid the legislative requirements for renewal.
Argument proceeded on the basis that insurance available for registered liquidators takes the form of claims made policies. Such policies will cover claims made within the policy period arising from events which occurred in a prior period if the policy provides retroactive cover, that is, cover for a claim made in a current policy period arising out of events which occurred in a prior period within the retroactive claim period. RG 258 includes retroactive cover as a factor relevant to a liquidator’s and ASIC’s determination whether insurance is adequate and appropriate.
If a registered liquidator maintains continuity of cover incorporating retroactive cover for the entire period the registered liquidator is working as a registered liquidator, then subject to issues such as exclusion of cover by reason of failures to comply with disclosure and notification obligations, generally speaking a registered liquidator will be covered in any policy period for claims made arising from working as a liquidator whether the work is performed in prior periods or the current policy period.
I turn to address the interpretation of the IPSC and Rules in relation to insurance requirements.
Before a liquidator is registered, the requirement for adequate insurance is expressed in the future tense, that is, an applicant will take out adequate insurance.
After the committee approves an applicant, if the applicant has taken out adequate insurance, then ASIC must register the applicant as a liquidator. The necessity to obtain the insurance therefore arises as a requirement for initial registration.
The annual return requires the liquidator to include evidence that the liquidator “maintained” adequate insurance in respect of liabilities the person may incur working as a registered liquidator for the year in respect of which the annual return is filed. The requirement to have maintained insurance is expressed in the past tense in conformity with a retrospective review.
The obligation to notify ASIC and suspension and cancellation powers are enlivened if the liquidator “ceases to have” adequate and appropriate insurance in respect of the liabilities the liquidator may incur working as a registered liquidator. The show cause notice provision entitles ASIC to issue a notice if ASIC believes the liquidator has “ceased to have” adequate insurance or if the liquidator has breached a current condition imposed on the liquidator.
The entitlement to renewal of registration as a registered liquidator arises if the applicant for renewal produces evidence that the applicant “maintains” adequate insurance. In contrast with the annual return requirement, this requirement is expressed in the present tense, that is, at the point in time at which ASIC considers the application, the applicant has in existence adequate and appropriate insurance against liabilities the person may incur working as a registered liquidator. The condition for registration is not expressed as covering the past period of registration, that is, it is not expressed as an obligation to establish that insurance was held during the past period and is still held at the time of application.
When the provisions are read together there is an ongoing obligation imposed on a registered liquidator to hold adequate and appropriate insurance, such insurance must be held at the point in time when a liquidator applies for renewal of registration, and a liquidator is obliged to inform ASIC if the liquidator stops holding such insurance.
The adequate and appropriate insurance requirement thus arises in three contexts. The first is that it is a requirement for initial registration. The second is as a requirement for renewal of registration. The third is as an ongoing obligation. If an applicant fails to take out adequate and appropriate insurance after initial approval by a committee, the applicant will not be registered. If an applicant does not hold adequate and appropriate insurance at the time of an application for renewal, the applicant’s registration will not be renewed. If during the period of registration there is a cessation of insurance cover, ASIC is empowered to take action (which I will describe generally as disciplinary action). Ceasing to hold adequate and appropriate insurance does not impact initial registration nor renewal if the cessation has been rectified by the date of renewal. I illustrate this using an example of a registered liquidator who remains registered during the period of registration. If such a liquidator failed to renew their insurance for a period of time during the course of the registration period, such as inadvertently allowing their insurance to lapse for a time before renewal, thus leaving a gap in cover, but the liquidator had rectified the position and had in place adequate and appropriate insurance at the date of renewal, ASIC would be obliged to renew the registration. ASIC’s renewal obligation would stand separately from any potential disciplinary action which may arise from the gap in adequate and appropriate insurance cover during the registration period.

The intention of the provisions in the context of a registered liquidator who continuously maintains registration without suspension is plain. Simply put, the registered (not suspended) liquidator must, at all times while registered as a liquidator, maintain insurance that covers the registered liquidator for liabilities the liquidator may incur arising out of professional services rendered as a registered liquidator. The adequate and appropriate insurance requirement will thus be met by a registered liquidator taking out and annually renewing adequate and appropriate insurance with retroactive cover so that at all times the liquidator “maintains” insurance in relation to the liabilities the liquidator may incur “working as” a registered liquidator.
The obligation to maintain insurance as a registered liquidator expressly relates to work the liquidator performs as a registered liquidator and only as a registered liquidator. Accordingly, it follows that the insurance required is against liabilities which may be incurred consequential upon working as a registered liquidator.
While suspended, a liquidator no longer works as a registered liquidator and therefore, by definition, cannot incur liabilities from working as a registered liquidator while suspended. However, a registered liquidator is still at risk of incurring liabilities relating to work performed prior to the suspension when the registered liquidator was working as a registered liquidator.
The parties accepted that r 20-5(4) of the Rules requires a registered liquidator to maintain run off cover during a period of suspension. Run off cover is typically obtained to provide cover for claims arising from work previously performed in a context where the insured no longer maintains current insurance such as because the insured has ceased to practice. There was no evidence before me concerning whether the insurance available for registered liquidators generally includes automatic run off cover and, if so, of what scope and for what length of time. In the absence of automatic, unlimited run off cover, a specific policy would be required. Mr Macks’ firm’s 2021 – 2022 policy with Liberty included a continuous cover clause with an unlimited retroactive date and a continuity date of March 2012. However, there was limited automatic run off cover only for 12 months and only for certain kinds of events relating to change of control of the insured or the appointment of an insolvency administrator.
Mr Macks’ case is he is only required to hold run off cover and that obligation arises pursuant to r 20-5(4) alone, not s 25-1. Mr Macks accepts he did not hold run off cover because he was unable to obtain any such cover given the state of the insurance market. However, ASIC’s position is that Mr Macks’ obligation arose under s 25-1 and his failure to hold insurance constituted breaches of that insurance obligation rendering Mr Macks liable to disciplinary action such that I should not exercise the discretion to grant an extension of time for Mr Macks to apply to renew his registration.
Determining whether s 25-1 applies to a suspended liquidator involves considering what is meant by the obligation that the liquidator “must maintain” insurance against “liabilities that the person may incur working as a registered liquidator”.
Turning firstly to the separate parts of the phrase, the Cambridge dictionary defines “maintain” as meaning to continue to have, to keep in existence or not allow to become less. The Oxford English dictionary defines “maintain” as to keep up, preserve, cause to continue in being, to keep effective. Maintain is expressed in the present tense. That is, there is a present obligation is to have adequate and appropriate insurance during the period of registration.
The reference to liabilities the liquidator “may incur” is also expressed in the present tense, supporting the suggestion the concept attaches to the present. However, the reference to “liabilities the liquidator may incur” could capture liabilities which may arise in the present from work performed in the past or the present.
The reference to “working” is in the present tense, suggesting the adequate and appropriate insurance obligation relates to the work the liquidator is presently performing as a registered liquidator. The requirement is not expressed as an obligation to maintain adequate and appropriate insurance in relation to liabilities the liquidator may incur working or having worked as a registered liquidator. The reference to “working” in the present tense is consistent with the explanation set out in RG 258 which reflects the intention that liquidators maintain continuity of cover with retroactive application and which recognises the practical claims made context of insurance for registered liquidators.
The relevant phrase is “working as a registered liquidator”. It cannot be the case that the phrase “liabilities that the person may incur working as a registered liquidator” covers work performed during a period of suspension for the reason that any work performed by a suspended liquidator will not be work “as a registered liquidator” by reason of that suspension. It must follow that a suspended liquidator does not have the obligation to maintain insurance for any work performed by the suspended liquidator during the suspension period.
The imposition on the suspended liquidator’s registration of a condition to hold run off cover addresses the underlying problem, that is, providing insurance to protect claimants in the event of claims relating to work performed before a period of suspension. There is no apparent reason why the legislature would oblige a suspended liquidator to carry full insurance with retroactive cover, as opposed to just run off cover, in order to cover claims arising from work performed prior to suspension. If it did, there would be an additional burden on practitioners to maintain run off insurance for historical work and also cover for work not then being undertaken in excess of the requirement for a person whose registration was not suspended. A suspended liquidator would have an obligation to pay a premium for irrelevant cover. Further, it is unclear what purpose r 20-5(4) would achieve if s 25-1 of itself required a suspended liquidator to hold run off cover.
There is a further reason supporting the conclusion that s 25-1 does not apply to a suspended liquidator. The obligation at the time of renewal is to produce evidence that the applicant maintains (that is, presently has) insurance against the liabilities the applicant “may incur working as a registered liquidator”, that is, the obligation extends to present and future work and is not limited to insurance for work in past periods. A liquidator holding run off cover could not satisfy the requirements of s 20-75(1) as run off cover would not satisfy the requirement to produce evidence in writing of existing maintenance of adequate and appropriate insurance cover. It would follow that in any case in which a liquidator’s period of suspension exceeded their current registration period, a suspended liquidator would be obliged to commence an application for registration anew.
Taking into account the matters addressed above, in considering the obligation expressed in its entirety as a compendious phrase, I prefer the view that the obligation in s 25-1 is intended to be a present obligation relating to working as a registered liquidator. It follows that the obligation in s 25-1 does not apply to a suspended liquidator who is not working as a registered liquidator. The insurance obligation on a suspended liquidator is an obligation to hold run off cover which is imposed only as a condition of the liquidator’s registration by r 20-5(4).
It follows that the failure to maintain run off cover would not amount to a failure to meet the requirements imposed by s 25-1 and would not constitute an offence on that basis. It also follows that granting an extension of time would not amount to a practical waiver of the insurance obligations in s 25-1.
While disputing that any alleged breach of r 20-5 would comprise an offence, Mr Macks appeared to accept there may be a basis for ASIC to issue a show cause notice as a consequence of his failure to hold run off cover. Section 40-40 of the IPSC empowers ASIC to give a registered liquidator a show cause notice if, among other things, the liquidator has breached a current condition imposed on the liquidator. Mr Macks’ obligation to hold run off cover was a condition imposed on him as a consequence of r 20-5(4). The parties did not make submissions on the proper interpretation of the provisions which impose obligations to lodge annual returns conforming with specific requirements or the provisions requiring notice of certain events. There was no evidence before me about the circumstances in which the annual returns were completed. This is not the occasion to consider any further the extent of Mr Macks’ obligations or ASIC’s powers arising from Mr Macks’ failure to hold run off insurance pursuant to r 20-5(4) or any asserted failures of disclosure in the completion of the annual returns.
I was not provided with any information about the terms of a policy which may cover Mr Macks in the future. I observe in passing that if such a policy were in the same terms as the policy issued by Liberty in 2021, apart from the excess applicable to Mr Macks, such a policy would appear to provide cover for future claims which may be made against Mr Macks arising from events covered during the retroactive period.
Should the application for an extension of time be granted?
Turning to the considerations referred to in Deppeler,[28] ASIC did not oppose the extension on the basis of length of the delay or any failure to explain the delay. The delay has been satisfactorily explained. ASIC did not point to any prejudice which would arise if the extension were to be granted. Neither party expressly referred to the likely merits of an application, another recognised factor relevant to extensions of time to appeal and a factor given due consideration by O’Callaghan J in Deppeler.[29]
[28] Deppeler, In the Matter of Deppeler [2017] FCA 768.
[29] Deppeler, In the Matter of Deppeler [2017] FCA 768 at [22]. See also, Mehmood v Attorney-General (Commonwealth) [2013] FCA 406; 141 ALD 339 at [3]- [6] (Foster J).
As set out above, ASIC’s opposition to the grant of an extension in essence related to complaints about Mr Macks’ conduct in, and associated with, failing to hold run off insurance cover.
Justice S Doyle determined to suspend Mr Macks for a period of time rather than disqualify him. It is implicit in a penalty of suspension that the suspension will lift and also implicit in the determination not to disqualify Mr Macks that he was not obliged to apply for registration afresh.
Taking into account the timing of the penalty hearing and delivery of reasons by S Doyle J, I do not consider the evidence sufficient to enable me to draw an inference to the effect that Mr Macks was aware of the inability to obtain run off insurance cover prior to the determination of penalty. I also do not consider it necessary to address what possibilities may have arisen had the issue been raised at that time.
In considering Mr Macks’ application, it is relevant that his inability to obtain insurance was through circumstances beyond his control, arising out of the state of the insurance market. While Mr Macks did not expressly raise with ASIC his inability to obtain run off cover until 2023, I am not persuaded his failure to disclose that situation of itself should disentitle him to an extension of time to apply for registration.
I consider it appropriate to view the application for an extension of time through the lens of the legislative framework which gives ASIC entitlement to take disciplinary action separately from the registration renewal process.
If Mr Macks had not been suspended, any cessation of adequate and appropriate insurance or failure to give required notice or any assertion of inaccurate completion of an annual return would have given rise to a potential for disciplinary action. It would not have empowered ASIC to refuse renewal of registration if insurance was in place at the date of the application.
Accordingly, I am not persuaded that I should refuse Mr Macks’ application on the basis of criticisms about his conduct. In the context of all of the matters to which I have referred, I do not consider Mr Macks’ failure to hold run off cover or asserted breaches of the annual return or notice obligations sufficiently weighs against the exercise of my discretion to allow the application for an extension of time. Taking into account all of the matters to which I have referred, I have determined to allow Mr Macks’ application for an extension. The extension will do no more than enable Mr Macks to apply to renew his registration, such application to be addressed afresh by ASIC on the basis of the application and supporting material. If any issues arise thereafter, they can be addressed separately.
Conclusion
I allow the application. I will hear the parties as to the form of the order I should make including to address the requirement on Mr Macks to file an application for renewal on the portal.

[2025] SASC 4

17 January 2025