Viscariello v Basedow
[2025] SASCA 34
•28 March 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
VISCARIELLO v BASEDOW & ORS
[2025] SASCA 34
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)
28 March 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - NON-PARTY INTERVENTION
CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - RANKING OF CLAIMS - PRIORITIES
This is an appeal from a decision of a single judge of this Court, refusing Mr Viscariello’s application to be joined or heard.
The proceedings concern the winding up of two companies, Bernsteen Pty Ltd and Newmore Pty Ltd (together, ‘the Companies’).
The applicant, Mr Viscariello, is a director, shareholder and creditor of the Companies. He claims to be a secured creditor of Newmore and an unsecured creditor of Bernsteen.
The respondent, as liquidator of both the Companies, sought orders pursuant to s 90-15 of Schedule 2 of the Corporations Act 2001 (Cth), to the effect that he was justified in paying the funds left in the liquidations of the Companies to himself and two former liquidators (Mr Macks and Mr Sheahan) for their fees incurred in those liquidations. The respondent also sought orders under s 480(d) of the Corporations Act that he be released as liquidator of the Companies and that the Companies be deregistered.
Orders to this effect were made by Judge Dart (as to the payment of fees), and by Auxiliary Judge Flourentzou (as to the release of Mr Basedow and the deregistration of the Companies). The fees have since been paid, and Mr Basedow has been released. But the Companies have not yet been deregistered.
Mr Viscariello became aware of the proceedings and filed an application to be joined or heard, with a view to reopening Mr Basedow’s applications and challenging the orders made by Judge Dart and Auxiliary Judge Flourentzou. McIntyre J dismissed Mr Viscariello’s application.
Mr Viscariello now seeks leave to appeal on three broad grounds, namely that McIntyre J erred in: (i) finding that he did not have a direct interest in the orders made in these proceedings; (ii) failing to provide adequate reasons for her conclusions of fact and law; and (iii) failing to recognise that the earlier orders were affected by an apprehension of bias on the part of Judge Dart.
The applicant also raises a number of subsidiary complaints relating to alleged procedural irregularities in the proceedings; Mr Basedow’s conduct of the liquidations more generally; and inadequacies in the reasoning of Judge Dart and Auxiliary Judge Flourentzou.
Held, refusing the application for leave to appeal:
(per S Doyle and David JJA):
1.The applicant’s status as a secured creditor did not give him any realistic prospect of a recovery from the funds remaining on hand in Newmore Pty Ltd;
2.In the circumstances, it was an appropriate exercise of McIntyre J’s discretion to conclude that Mr Viscariello’s status as a secured creditor of Newmore Pty Ltd was not a sufficient basis for him to be joined or heard;
3.The complaint of inadequacy in McIntyre J’s reasons is not reasonably arguable;
4.The applicant’s general complaints of wrongdoing in the conduct of the liquidations; procedural irregularities in the proceedings below; and inadequacies in the reasoning of Judge Dart and Auxiliary Judge Flourentzou do not provide a proper basis for impugning McIntyre J’s exercise of her discretion to refuse the application to be joined or heard; and
5.Therefore, having regard to the lack of apparent merit or utility in the proposed appeal and the interests in the finality of litigation, the interests of justice do not favour a grant of leave to appeal.
(per Kourakis CJ, dissenting):
1.The applicant ought to have been joined as a party to the applications so that he might contend that the advice and directions should be set aside to accord him procedural fairness;
2.It is therefore appropriate to allow the appeal and set aside the orders made on Mr Basedow’s applications.
Corporations Act 1989 (Cth) s 479(3); Corporations Act 2001 (Cth) ss 180, 181, 182, 473(8), 480, 480(d), 481(3), 509(1), 511, 536(1), 545, 545(1), 545(2), 555, 556, 556(1), 556(1)(a), 556(1)(dd), 556(1)(de), 556(1)(e), 556(1)(g), 556(1)(h), 561, 561(1), 600K, 601AH(2), sch 2, ss 70-35, 90-15; Corporations Rules 2003 (SA) rr 1.3(1), 1.3(2), 1.5, 2.8, 2.8(3), 2.13, 2.13(1), 2.13(3), 7.5, 7.5(6), 7.6, 7.6(2); Supreme Court Act 1935 (SA) ss s 50(4)(b), 50(5)(a), 50(5)(e); Uniform Civil Rules 2020 (SA) rr 21.1, 21.1(3), 21.1(4), 22.1, 22.1(1), 186.1, 213.1(1)(a), referred to.
Australian Competition & Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688; Australian Securities and Investments Commission v Macks (No 4) [2020] SASC 209; Boys v Australian Securities and Investments Commission [2019] FCA 320; Buchler v Talbot [2004] 2 AC 298; Burke v Public Trustee for the State of South Australia [2022] SASCA 64; China First Pty Ltd v Mount Isa Mines Ltd [2018] QCA 350; Commonwealth of Australia v Tonks [2023] NSWCA 285; Cook v Italiano Family Fruit Co Pty Ltd (in liq) (2010) 190 FCR 474; Deputy Commissioner of Taxation v Tideturn Pty Ltd (2001) 37 ACSR 152; Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167; Equititrust Ltd (in liq) v Equititrust Ltd (in liq) (No 4) [2017] FCA 1133; GIS Electrical Pty Ltd v Melsom (2002) 172 FLR 218; House v The King (1936) 55 CLR 499; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu (2008) 167 FCR 212; Kirman v RWE Robinson & Sons Pty Ltd (in liq) [2019] FCA 372; Macks v Viscariello (2017) 130 SASR 1; Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262; N, A-B v V, AM (No 2) [2017] SASCFC 174; NA Kratzmann Pty Ltd v Tucker (No 2) (1968) 123 CLR 295; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; Re Australasian Barrister Chambers Pty Ltd (2020) 146 ACSR 1; Re Ballistic Australia Pty Ltd [2014] NSWSC 1495; Re Bell Group Ltd (in liq) (2013) 97 ACSR 117; Re Bernsteen Pty Ltd (in liq) and Newmore Pty Ltd (in liq) [2024] SASC 125; Re BCA National Training Group Pty Ltd (in liq) [2023] NSWSC 366; Re ERB International Pty Ltd (2014) 98 ACSR 124; Re Fresjac Pty Ltd (in liq) (1995) 65 SASR 334; Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674; Re Hawden Property Group Pty Ltd (in liq) (2018) 125 ACSR 355; Re JW Murphy & PC Allen; Re BPTC Ltd (in liq) (1996) 19 ACSR 569; Re Kimberley Diamonds Ltd (in liq) [2018] NSWSC 1106; Re Likehart Pty Ltd [2017] NSWSC 906; Re Mirabela Nickel Ltd (in liq); Ex Parte Madden [2018] WASC 335; Re Octaviar Ltd (in liq) [2016] NSWSC 16; Re One.Tel Ltd (2014) 99 ACSR 247; Re Read; Australian Securities & Investments Commission v Forrestview Nominees Pty Ltd (in liq) (2007) 164 FCR 237; Re RH Trevan Pty Ltd (in liq) [2013] NSWSC 1445; Re Roxby Downs Club Inc (in liq) [2024] SASC 120; Re RR Impex Pty Ltd (in liq) [2013] NSWSC 1667; Re Universal Distributing Company Ltd (in liq) (1933) 48 CLR 171; Re Wayland as Liquidator of ABC Containerline NV (in liq) (2005) 52 ACSR 750; Re 3 Property Group 13 Pty Ltd (in liq) [2022] FCA 1216; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98; Ross v Lane Cove Council (2014) 86 NSWLR 34; Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1338; Simitzis v Australian Securities and Investments Commission [2017] VSC 614; Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; Viscariello v Macks (2014) 103 ACSR 542; Viscariello v Tamasauskas (No 3) [2019] SASC 79; Wyse & Young International Pty Ltd v Corrado [2015] NSWSC 1863, considered.
VISCARIELLO v BASEDOW & ORS
[2025] SASCA 34Court of Appeal – Civil: Kourakis CJ, S Doyle and David JJA
KOURAKIS CJ: I have had the advantage of reading the judgment of S Doyle and David JJA. I gratefully adopt their Honours’ comprehensive account of the factual circumstances and the statements of the applicable law against which this appeal must be decided. I adopt their Honours’ defined terms.
Mr Basedow, in his supporting affidavit,[1] deposed that upon his appointment as the liquidator of Newmore and Bernsteen Mr Macks transferred to him what remained of the funds which Mr Macks had held as liquidator.[2] At that time, Mr Macks told Mr Basedow that the bulk of those funds were derived from settlements obtained in connection with unfair preference claims. The informality of the communication of that information, combined with the failure to provide any financial records showing the provenance of the funds, is not what is expected of liquidators who act as officers of this Court. Mr Basedow acknowledged in his affidavit[3] that he:
·did not have records available to him which enabled him to be more confident as to the likely source of the funds remaining on hand;[4] and
·was not in a position to verify the accuracy of the information received from Mr Macks.[5]
[1] Affidavit of Michael Oscar Basedow dated 23 November 2023 (CIV-23-013549).
[2] Ibid, 10 [28]-[29].
[3] Affidavit of Michael Oscar Basedow dated 15 January 2024 (CIV-23-013549).
[4] Ibid, 3 [5].
[5] Ibid [4].
Mr Basedow accepted that he was aware Mr Viscariello claimed to be a secured creditor of Newmore but asserted that it would not be cost effective for him to review the source of those funds.
I observe that Mr Macks’ assertion that the ‘bulk’ of the funds was derived from settlements obtained in connection with unfair preference claims is a conclusionary statement which is both inscrutable and vague. In any event, it does not address the critical question; that is, whether the interest claimed by Mr Viscariello was in any positive balance in the fixed asset fund.
All that was needed to address that interest was evidence which quantified the proceeds of the realisation of assets over which Mr Viscariello claimed to hold his security, and evidence of the costs incurred by the liquidator in protecting and realising those assets (‘the Universal Distributing costs’).
Mr Basedow did not depose that he had asked Mr Macks for an accounting of the fixed asset fund. In discharging his duties as a liquidator, it is expected Mr Macks would maintain financial statements, spreadsheets and journal entries which would enable a calculation of the balance, if any, available to creditors who held a security over fixed assets (‘the financial records’). Nor was there any evidence that Mr Macks was not able to provide that information.
As S Doyle and David JJA observe, it was regrettable that Mr Basedow did not have the financial records available to him and that he did not produce them to the Court. Had Mr Viscariello been afforded an opportunity to be heard, those records would inevitably have been called for. In the absence of any evidence explaining why the financial records were not put into evidence, it is not possible to accept that calculating the balance due to Mr Viscariello, if he were a secured creditor, was complex or difficult. I emphasise that it was not necessary to engage in the more complex task of tracing the source of the remaining funds. Only a quantification of the balance of the proceeds realised from fixed assets, after deducting the Universal Distributing costs, was required. If there was a positive balance in the fixed asset fund, then the liquidator was bound to pay it to the secured creditors. Even if it be accepted that Mr Macks did not keep the funds received from realising the fixed assets in a separate account, if the financial records showed there to be a positive balance in the fixed asset fund, the funds transferred to Mr Basedow must be distributed to the secured creditors. The whole of those funds cannot properly be applied in payment of the fees or disbursements of the liquidators if there is a positive balance in the fixed asset fund.
I acknowledge that, in his submissions,[6] Mr Basedow referred to two paragraphs of my judgment in Viscariello v Macks,[7] which contain tables prepared by Mr Macks purporting to record recoveries made and costs incurred whilst he was the liquidator of both Newmore and Bernsteen. The first table is headed ‘Universal Distributing Summary for Floating Charge Assets’. That table was later amended, and the second table is entitled ‘Summary of Expenses for Protecting, Preserving and Realising Floating Charge Assets’. It is important at the outset to emphasise that Mr Basedow relied on the tables for the very limited purpose of explaining that there are two ways in which funds may be distributed in an insolvent winding up. He did not, and indeed could not, rely on the tables as evidence of what did, in fact, remain in Newmore’s fixed asset fund.
[6] Written Submissions dated 17 January 2024 (CIV-23-013549).
[7] Viscariello v Macks (2014) 103 ACSR 542, 691-698 [737]-[738].
The second of the tables reproduced in the Judgment[8] includes three lines on the realisation of the fixed charged assets for Newmore and Bernsteen and the Universal Distributing costs incurred in respect of them. In the case of Newmore, those proceeds were $5,476.00, and the costs of preserving and protecting the assets were equal, leaving a nil balance. A larger amount is recorded as being recovered on the realisation of Bernsteen’s fixed assets but again, the costs recorded equalled the recovery, leaving a balance in respect of both companies of zero dollars. It is doubtful that that is merely a coincidence. It may suggest that more was spent in realising the value of the fixed assets. If that is so, it is not apparent from the table how the costs were allocated between the two entities. In any event, I make the following additional observations as to why no reliance can be placed on those entries.
[8] Ibid, 696 [738].
First, the tables were referred to in the course of the judgment only in respect of the liquidation of Bernsteen and in order to show that, on the face of the very documents prepared by Mr Macks, more was spent in legal proceedings against one of Bernsteen’s debtors, in respect of the charged assets, than the net value of the proceeds derived from their realisation. The consequence of the over-expenditure on liquidator and solicitor’s fees was that the money, which might otherwise have been available to unsecured creditors, was expended in the pursuit of a debtor for the benefit of the person holding the floating charge.
Second, the entries in respect of Newmore’s fixed asset fund were not referred to at all in the judgment.
Third, the table’s inclusion of the proceeds received from, and the costs of, realising Newmore’s fixed assets strongly suggests that there are journal entries or other financial records from which those items were calculated.
Fourth, the relatively small value of Newmore’s fixed assets gives every reason to believe it would not be a complex exercise to produce the financial records relating to the fixed assets.
Fifth, the reliability, accuracy and completeness of the entries in respect to the fixed charged assets of Newmore was not decided in that case. Indeed, questions concerning Mr Viscariello’s security, and in particular whether he was subrogated to the Commonwealth Bank of Australia, were expressly not decided. One of the reasons for declining to determine the issue was that it remained unknown whether, and to what extent, there would be funds in the liquidation over which the security could be enforced after proper allowance for the liquidator’s fees and costs.[9]
[9] Ibid, 737 [913].
In short, the express reference to the tables in the judgment shows that there are likely to be financial records relating to the fixed asset fund which could have, and ought to have, been produced on Mr Basedow’s application for advice and directions.
The advice sought by Mr Basedow was in respect of a matter internal to the liquidation. Advice on legal rights and obligations between the company in liquidation and other persons in respect of matters external to the liquidation merely protects a liquidator, who acts in accordance with that advice, from claims made against the company in liquidation in respect of its external obligations. The advice does not bind third persons who have an interest in those matters. However, that was not this case. The advice sought by Mr Basedow affected the relative priorities of persons claiming within the liquidation.
The practical, legal effect of the directions to use the remaining funds to pay the fees and disbursement of the liquidation was to deny Mr Viscariello his statutory priority as a secured creditor over any positive balance which may have stood in the fixed asset fund.
In paras [185] and [212] of their reasons, S Doyle and David JJA have explained why it would have been more prudent for Mr Basedow and Judge Dart to have given Mr Viscariello an opportunity to be heard on Mr Basedow’s IPS application. Further, in my opinion, the failure to hear Mr Viscariello on the application denied him procedural fairness in a way which had material consequences. If he had been heard, Mr Viscariello could reasonably have contended that the liquidators should not receive the remuneration sought unless probative evidence was produced showing the balance of the fixed asset fund as nil or in the negative. That contention would have called for an explanation as to why Mr Macks’ records in respect of the fixed asset fund had not been produced. If the records were not produced after all reasonably practicable steps to obtain or produce them had been taken, a finding might be made that the cost and complexity of reconstructing the fund could not be justified. If the financial records were produced and showed a positive balance, Mr Viscariello would have been vindicated. If the financial records showed a negative balance, there would be good reason, based on sound probative evidence, to give the directions sought.
The failure to accord procedural fairness has now left Mr Viscariello and this Court to speculate about what might have been recovered from his security if he had been heard on Mr Basedow’s application. There are few proceedings before the Court which call out for finality more loudly than these. However, procedural fairness is at the core of the just disposition of proceedings. Not much more is required to end this controversy prudently and without regrets or lingering grievances.
For these reasons, I hold that Mr Viscariello ought to have been joined as a party to the applications so that he might have contended that the advice and directions should be set aside to accord him procedural fairness. Therefore, I would allow the appeal and set aside the orders made on Mr Basedow’s applications.
S DOYLE AND DAVID JJA: These proceedings were commenced by Mr Basedow in his dual capacities as the liquidator of both Bernsteen Pty Ltd and Newmore Pty Ltd (together, the Companies). The Australian Securities and Investments Commission (ASIC) was named as the respondent.
As explained in more detail below, Mr Basedow sought orders: that he was justified in paying the funds left in the liquidations of the Companies to himself and two former liquidators (Mr Macks and Mr Sheahan) for their fees incurred in those liquidations; that he be released as liquidator of the Companies; and that the Companies be deregistered.
Orders to this effect were made by Judge Dart (as to the payment of fees), and by Auxiliary Judge Flourentzou (as to the release of Mr Basedow and the deregistration of the Companies). The fees have since been paid, and Mr Basedow has been released. But the Companies have not yet been deregistered.
The applicant before this Court, Mr Viscariello, is a director, shareholder and creditor of the Companies. He claims to be a secured creditor of Newmore and an unsecured creditor of Bernsteen. On his evidence, he did not become aware of these proceedings until the orders referred to had been made.
On becoming aware of the proceedings, Mr Viscariello brought an application seeking orders, amongst other things, that he be joined or heard, with a view to him seeking to reopen Mr Basedow’s applications and challenge the decisions made by Judge Dart and Auxiliary Judge Flourentzou.
A justice of this Court (McIntyre J) refused Mr Viscariello’s application. He now seeks leave to appeal to this Court on three grounds, each of which has various sub-grounds.
For the reasons set out below, we are not satisfied that there is sufficient merit or utility in the proposed appeal to warrant a grant of leave to appeal.
Given the matters sought to be raised, it is necessary to set out the background to these proceedings in some detail. In so doing, we have made reference to some general matters which are apparent from other judgments of this Court, and which we understand are not controversial.[10]
[10] In particular, Viscariello v Macks (2014) 103 ACSR 542; Macks v Viscariello (2017) 130 SASR 1; Australian Securities and Investments Commission v Macks (No 4) [2020] SASC 209.
The reasons which follow are structured as follows:
Background
The present proceedings
Mr Viscariello’s involvement
The relevant rules
The reasons of McIntyre J
The proposed appeal
Leave to appeal
Joinder and the right to be heard
The nature of the proceedings
Mr Viscarello’s interest as a secured creditor
Complaints about the conduct of the liquidations
Complaints about procedural irregularities in these proceedings
Other challenges to the orders made
Adequacy of McIntyre J’s reasons
Leave to appealAddendum
Conclusion
Background
Bernsteen was incorporated in June 1988, and Newmore was incorporated in June 1992. From their incorporation through to their liquidation in December 2001, they carried on business as retailers of manchester. They traded through 33 retail outlets, located primarily in the Adelaide metropolitan area.
Mr Viscariello was the sole director, principal shareholder and effective controller of the Companies. He also claimed to be a creditor of the Companies.
By late 2001, the Companies were experiencing significant financial difficulties. On 5 December 2001, Mr Viscariello determined that the Companies were insolvent or likely to become insolvent in the near future, and Mr Macks (of PPB Advisory) was appointed as their voluntary administrator.
Mr Viscariello anticipated that the Companies would each enter into a deed of company arrangement or DOCA. However, when agreement was not able to be reached, and Mr Macks informed the creditors that there was no proposal to rescue the Companies, the creditors resolved to wind them up. On 21 December 2001, Mr Macks was appointed the liquidator of both Bernsteen and Newmore.
The liquidations of Bernsteen and Newmore were complex. Issues that needed to be addressed included: issues arising in relation to the numerous tenancies and distraints by landlords; disputed claims as to the ownership of stock; creditors having security over assets of the Companies, including certain stock and plant and equipment; the need to sell stock and plant and equipment for the various stores; employee entitlement claims; numerous unfair preference claims which resulted in significant recoveries for Bernsteen and Newmore; and the pursuit of litigation for the recovery of contractual debts.
During the course of the liquidations, Mr Macks became embroiled in a number of disputes with Mr Viscariello. Mr Viscariello disagreed strongly with the decision to place the Companies into liquidation. He took issue with several aspects of Mr Macks’ conduct as voluntary administrator and then liquidator. Mr Viscariello came to litigate many of his grievances in proceedings issued against Mr Macks in the Supreme Court in February 2006. Mr Viscariello was also involved in various other pieces of litigation involving Mr Macks and Bernsteen.
In July 2006, Mr Macks filed proceedings in the Federal Court seeking orders for the appointment of Mr Sheahan and Mr Lock (of Sheahan Lock) as special purpose liquidators of the Companies, under ss 473(8) and 511 of the Corporations Act 2001 (Cth), for the purpose of investigating a potential insolvent trading claim against Mr Viscariello. In August 2006, Registrar Christie made orders to this effect. The special purpose liquidators brought an application to examine Mr Viscariello, and after significant opposition and consequential delay, this examination occurred. Whilst the special purpose liquidators commenced insolvent trading proceedings against Mr Viscariello in December 2007, the proceedings were ultimately abandoned in 2009 on the basis that they had become uncommercial by reason of what the special purpose liquidators regarded as the obstructive approach taken by Mr Viscariello. Significant fees were incurred by the special purpose liquidators, and although not paid, were ultimately approved by the Companies’ committees of inspection. In July 2014, Mr Sheahan and Mr Lock retired as special purpose liquidators.
The trial of the Supreme Court proceedings commenced by Mr Viscariello against Mr Macks was heard by Kourakis CJ over more than 50 sitting days during 2012 and 2013. Judgment was delivered in 2014, dismissing the claims against Mr Macks in his capacity as administrator of the Companies. However, in relation to the claims against Mr Macks in his capacity as liquidator of Bernsteen, his Honour found that Mr Macks acted in breach of the duties owed by him under ss 180-182 of the Corporations Act in connection with his prosecution of two pieces of litigation involving Mr Viscariello.
In April 2015, Mr Macks consented to an order in the Supreme Court proceedings for his removal as the liquidator of the Companies. Mr Basedow (of Pitcher Partners) was appointed as liquidator of the Companies.
Mr Macks subsequently appealed the judgment in the Supreme Court proceedings, and Mr Viscariello cross-appealed. The appeal and cross-appeal were heard in early 2017, with the judgment of the Full Court delivered in late 2017. Mr Macks’ appeal was successful in part, but the finding that he breached s 180 of the Corporations Act was upheld. Mr Viscariello’s cross-appeal was dismissed.
During 2015, ASIC commenced proceedings seeking an inquiry under s 536(1) of the Corporations Act into the conduct of Mr Macks as liquidator of the Companies. Those proceedings were not progressed while the Supreme Court proceedings played out. In 2018, ASIC successfully applied to amend its proceedings to confine the inquiry it sought to the findings of misconduct by Mr Macks that had been upheld by the Full Court. The inquiry was conducted, and judgment delivered, during 2020. The Court held that the alleged breaches of duty were not established. However, it found that Mr Macks had engaged in misconduct involving the fabrication of a document with the intention of dishonestly deceiving ASIC in the course of its investigation of his conduct.
In February 2021, the Court made orders which included the suspension of Mr Macks’ registration as a liquidator for a period of three years.
The present proceedings
On 23 November 2023, Mr Basedow commenced these proceedings in his dual capacities as liquidator of Bernsteen and Newmore. The originating process sought orders, pursuant to s 90-15 of Schedule 2, Insolvency Practice Schedule (Corporations) (the IPS), of the Corporations Act,[11] to the effect that Mr Basedow was justified in making certain payments from the assets of the Companies to Mr Macks, Mr Sheahan and himself for their fees or remuneration as liquidator or special purpose liquidator for the Companies, and expenses or disbursements by way of filing and legal fees incurred in connection with these proceedings. It also sought orders, under s 480(d) of the Corporations Act, that Mr Basedow be released as liquidator of the Companies and that ASIC deregister the Companies.
[11] The IPS has effect under s 600K of the Corporations Act.
The originating process was supported by an affidavit of Mr Basedow sworn 23 November 2023. In this affidavit, Mr Basedow explained the background to the liquidations of the Companies in very general terms, including reference to the Supreme Court proceedings brought by Mr Viscariello against Mr Macks, and the orders made for Mr Basedow’s appointment as liquidator of the Companies.
Mr Basedow then annexed a copy of the circulars dated 12 August 2021 which he had issued to the creditors of the Companies. In the body of his affidavit, Mr Basedow highlighted various matters contained in these circulars, including the following. He had been appointed at a time after investigations into the affairs of the Companies and the recovery of assets had been undertaken and completed. The scope of his appointment as liquidator of the Companies was limited to statutory tasks, reporting and investigating the conduct of Mr Macks during the period he had been liquidator of the Companies.
The circulars stated that, as at 12 August 2021, Mr Basedow had: met with Mr Macks in relation to the conduct of the liquidation; reviewed the books and records of Bernsteen that were provided to him by Mr Macks and his former solicitors; held discussions with various parties in relation to the conduct of Mr Macks; reported to ASIC; obtained funding from ASIC to undertake further investigations; and reported to ASIC again.
The circulars explained that, having regard to the reasons of the Full Court in the Supreme Court proceedings, claims may have been available to Mr Basedow as liquidator of the Companies against Mr Macks for breaches of his duties to the Companies, and that Mr Macks may have been insured for those claims. On 21 December 2018, with a view to avoiding potential time limitations expiring, solicitors for Mr Basedow had issued proceedings against Mr Macks in the District Court, alleging breaches of duty. However, Mr Basedow explained that he did not have funding in place to pursue the District Court claim, and having formed the view that it would be vigorously defended, and having regard to advice and commercial considerations, he had discontinued the claim.
The circulars noted the proceedings that had been brought by ASIC against Mr Macks, that Mr Basedow had provided an expert report in those proceedings, and the outcome of those proceedings.
The circulars explained that the tasks that remained prior to the finalisation of the winding up of the Companies included: attending to further administrative tasks including bank reconciliations, business activity statements for lodgement with the Australian Taxation Office and statements of receipts and payments for lodgement with ASIC; seeking directions from the Court with respect to the payment of remuneration and disbursements to Mr Basedow and the former liquidator and special purpose liquidators; attending to these payments and other administrative tasks; and attending to final statutory lodgements and resignation documents.
Mr Basedow concluded his summary of the circulars by noting that they informed creditors that due to the significant time and cost associated with the matters referred to, including the investigations of Mr Macks’ conduct, and the limited assets in the liquidations of the Companies, no dividend would be payable to creditors of the Companies. He said that the scope of his appointment as liquidator of the Companies, other than attending to the steps necessary in every appointment, was in effect restricted to investigating the conduct of Mr Macks during the period he had been liquidator. Mr Basedow said that he had received $163,755 (exclusive of GST) from ASIC’s Assetless Administration Fund, and had used the funds provided by ASIC to contribute to the $180,130 (including GST) paid towards his own remuneration associated with investigating and reporting to ASIC, and the $45,752 (including GST) paid towards his legal expenses associated with the same. The circulars attached reports relating to Mr Basedow’s remuneration, which included not only the hourly rates at which work had been charged, but also a fairly high level breakdown of the tasks undertaken and the remuneration attributable to each.
In his affidavit, Mr Basedow next summarised the creditors meetings for Bernsteen and Newmore which he presided over on 9 September 2021. Those summaries were in equivalent terms for each of the two meetings. They included reference to Mr Viscariello being in attendance at both meetings. They described the purpose of the meetings as being to provide reports to the creditors, to consider the summary of Mr Basedow’s receipts and payments in respect of the liquidations, to fix and determine remuneration, to approve the early destruction of books and records, and to consider any other business. At each meeting it was resolved: (i) that the remuneration of the liquidator for the period from April 2015 to June 2021, as calculated in the relevant remuneration report, be approved for payment from available funds (in the amounts of $121,000 for Bernsteen, and $41,097 for Newmore); (ii) that future remuneration for the period from July 2021 to finalisation of the liquidations be calculated at rates set out in the remuneration report (up to capped amounts of $20,000 for Bernsteen, and $20,000 for Newmore), and be paid from available funds; and (iii) that the creditors direct the liquidator to apply to ASIC when appropriate, or upon finalisation of the relevant liquidation, for consent to destroy books within the retention period in accordance with s 70-35 of the IPS.
Mr Basedow then explained that, in addition to continuing to conduct bank reconciliations and prepare Business Activity Statements for the Companies, he would continue to prepare and lodge with ASIC the required annual record of receipts and payments. He exhibited the most recent receipts and payments form, which covered the period up to 14 April 2023. He noted that this included the following amounts and estimates (relating to Mr Basedow’s time as liquidator of the Companies):
Bernsteen
Newmore
Total receipts
$269,953
$96,583
Total payments
$226,556
$3,177
Remuneration paid
$180,130
$0
Disbursements paid
$45,752
$0
Cash at bank
$43,397
$93,406
Future receipts
$0
$0
Priority creditors (including employee entitlements)
$232,882
$244,465
Secured creditors
$861,660[12]
$282,167[13]
Unsecured creditors
$2,888,442
$1,126,882
[12] The estimate for Bernsteen’s secured creditors related to the sole secured creditor, Associated Retailers Limited.
[13] The estimate for Newmore’s secured creditors comprised $86,147 owed to the Commonwealth Bank of Australia (which is the secured debt to which Mr Viscariello claims to be subrogated) and $196,020 owed to Associated Retailers Limited.
Mr Basedow deposed that, as at the date of his affidavit, the funds held by him were $43,732 for Bernsteen and $94,135 for Newmore, giving a total of $137,867.
Significantly, for the purposes of the application before this Court, Mr Basedow proceeded to explain that the funds held by him had been transferred to him by Mr Macks upon his appointment as liquidator of the Companies, that he had been told by Mr Macks that he had formed the view they consisted of funds derived from unfair preference claims, and that it would not be cost effective for him to review the source of these funds further:
28.The funds I am holding are made up of funds transferred to me by Mr Macks upon my appointment, along with small interest amounts earned since.
29.Mr Macks has informed me that the bulk of the funds transferred to me for both of the Companies upon my appointment consisted of funds derived from settlements obtained in connection with unfair preference claims which he had made in his capacity as liquidator.
30.I have not spent time reviewing all of the records which have been passed on to me concerning the source of the funds held in each winding up. Given the amounts involved I have formed the view this would not be cost effective.
Mr Basedow then summarised the approved claims for remuneration and disbursements that remained unpaid:
Bernsteen
Newmore
Mr Macks approved remuneration
$1,265,697[14]
$194,986[15]
Sheahan Lock approved remuneration
$289,369
$10,238
Sheahan Lock approved disbursements
$56,283
$3,379
Mr Basedow approved remuneration
$155,100
$67,206
Total outstanding approved amounts
$1,766,450
$275,810
[14] Comprising total approved remuneration ($1,433,040), less impugned approvals ($26,961) and paid amounts ($140,382).
[15] Comprising total approved remuneration ($349,475), less impugned approvals ($14,804) and paid amounts ($139,684).
Mr Basedow explained that his solicitors, Cowell Clarke, had agreed to cap their fees for acting in connection with these proceedings in the amount of $10,000 plus GST, which he wished to meet in equal shares from the funds held for the two Companies. He also indicated some other amounts (filing fees for these proceedings, some other legal fees and anticipated disbursements) to be paid. He explained that after payment of these legal fees and other disbursements, the remaining funds on hand would be $26,613 for Bernsteen and $79,814 for Newmore.
Mr Basedow sought orders that he was justified in dealing with the funds he held for Bernsteen and Newmore by paying these legal fees and disbursements, and then paying the remaining funds to Mr Macks, Sheahan Lock and himself in proportion to the amounts of their unpaid approved remuneration and disbursements.
Mr Basedow concluded his affidavit by noting that his originating application also sought orders pursuant to s 480 of the Corporations Act that he be released as liquidator of the Companies and that ASIC deregister them. He noted that ASIC had been named as the respondent, and that he would need to serve ASIC and the creditors who had lodged proofs of debt in the winding up of each of the Companies. He requested that this aspect of the proceedings be addressed after any orders in relation to the distribution of funds had been made, and the distributions made.
Mr Basedow filed a further affidavit, sworn 15 January 2024. After updating the amounts of some payments by way of legal fees and other disbursements, Mr Basedow addressed further the issue of the source of the funds he had on hand for the Companies. Implicit in what was set out was an understanding that the source of funds (and, in particular, the extent to which the funds related to the return from unfair preference claims as opposed to, for example, the realisation of charged assets) might be relevant. In any event, Mr Basedow explained:
4.Since swearing my initial affidavit I have reviewed again the state of the records I have access to in the administrations and have formed the conclusion that it would take me a significant amount of work, potentially in the tens of hours of my time on each of the administrations to come to a better informed view as to:
4.1 what floating charge assets were available in each administration and winding up;
4.2 what funds were realised from the sale of such floating charge assets;
4.3 the expenses Mr Macks devoted to the realisation of floating charge assets;
4.4 what time recorded by Mr Macks and his staff in each administration can be connected with the realisation of floating charge assets and whether this was reasonably incurred; and
4.5 the approach taken by Mr Macks in paying expenses and drawing remuneration before my appointment …
5.It is also my view that even if I devoted the time referred to immediately above to considering the issues referred to in the immediately preceding paragraph it is not certain that I could arrive at any firm conclusions given the state of the Companies’ records. In addition to electronic records the hard copy records I hold in connection with the administrations of the Companies total 174 archive boxes, made up of 112 for Bernsteen, 50 for Newmore and 12 which are mixed.
6.Further, any time spent by me and my staff on such tasks would not itself contribute to the realisation of floating charge assets.
Mr Basedow pointed to findings in the Supreme Court proceedings to the effect that, by late 2005, there had been unfair preference recoveries of $225,000 in Bernsteen, and $120,750 in Newmore.[16] Noting the very significant disparity between the unpaid approved remuneration and disbursements, and the funds on hand, and in order to ‘simplify the final distribution of funds’ from Bernsteen and Newmore, Mr Basedow requested that the Court determine that he was justified in treating ‘the whole of the amounts currently held … as being realised from unfair preference claim settlements and to distribute it by reference to the statutory priorities’.
[16] Viscariello v Macks (2014) 103 ACSR 542 at [494], [498] (Kourakis CJ).
Mr Basedow went on to explain that, in the case of Bernsteen, as the funds on hand were less than the disbursements (as opposed to remuneration) claimed by Sheahan Lock and Mr Basedow,[17] an application of the statutory priorities would mean that there would be nothing available for the remuneration of Mr Basedow, Sheahan Lock or Mr Macks; however, in the case of Newmore, there would be some funds left after the payment of disbursements, meaning that an application of the statutory priorities would result in some payment towards the unpaid approved remuneration of Mr Basedow, Sheahan Lock and Mr Macks. Mr Basedow also noted that, whilst Mr Macks had previously been paid some remuneration by both Bernsteen and Newmore, he did not propose undertaking any further investigation into those payments or to seek recovery of any of the amounts paid.
[17] With Mr Basedow’s disbursements to include the fees incurred in these proceedings.
Mr Basedow’s affidavit included calculations of the amounts that it was proposed would be paid by the Companies to each of the liquidators on account of disbursements and remuneration, and attached a draft amended originating process reflecting these amounts.
The affidavit also indicated that ASIC had been provided with the application, given that it had been brought pursuant to s 90-15 of the IPS. However, Mr Basedow acknowledged that it was premature to seek orders for his release as liquidator and deregistration of the Companies, and proposed that those orders be dealt with by subsequent application after distributions had been made.
On 16 January 2024, affidavits sworn by Mr Basedow’s solicitor, Mr Leech of Cowell Clarke, confirmed Mr Macks’ and Mr Sheahan’s consent to the proposed distributions, and that ASIC had been served with the application and supporting affidavits.
On 17 January 2024, some brief written submissions were filed on behalf of Mr Basedow addressing various aspects of his application. After identifying the evidence that had been filed, the submissions explained that the only necessary party to an application under s 90-15 of the IPS was ASIC, and it had acknowledged service. The submissions noted that the former liquidators had been provided with notice; and contended that ‘given that the total unpaid disbursements and approved remuneration of the applicant, Mr Macks and Mr Sheahan, exceed the available funds in both cases, there is no prospect of any creditor ever receiving a return, meaning there should be no need to bring the application to the attention of the creditors of the Companies’.
The written submissions then adverted to an issue which has become central to the present proceedings, arising out of Mr Viscariello’s claim to be a secured creditor of Newmore. The following passage from the submissions noted the existence of a secured creditor with a fixed and floating charge, and said the following as to the implications for the proposed distribution:
12.There are two ways that funds may be distributed in an insolvent winding up in which there is a secured creditor having a fixed and floating charge over all of a company’s assets (as is the case here).[18]
13.If a liquidator wishes to recoup the costs, expenses and remuneration incurred in the care, preservation and realisation of property the subject of a circulating security interest (under the principle in Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171), then the liquidator may do so out of the proceeds of the realisation of that property.
14.Money recovered by a liquidator as a consequence of a claim for an unfair preference, however, becomes property of the company, and is not to be treated as floating charge assets.[19]
15.The Applicant recognises that Mr Macks appears to have sold floating charge assets in the administration and winding up of the Companies,[20] and to have obtained approval to draw remuneration, which has been partly drawn.
16.The Applicant says that undertaking a complete analysis of all of the Companies’ books in order to determine how the remaining balance of funds came to be held, including identifying what amounts were floating charge assets and what were not would be an extremely burdensome task, if it was even possible.[21]
17.Such tasks would not relate to the realisation of floating charge assets, meaning that there would be no basis upon which the Applicant could seek remuneration for that work, should it be found that the funds should be treated as floating charge assets. Section 545(1) of the Corporations Act should inform the Court’s view as to what may be expected of a liquidator in such circumstances.
18.There is evidence that Mr Macks made preference recoveries of amounts at least exceeding the funds now held.[22]
19.Whilst the Applicant does not submit that the Court needs to find that the remaining funds were obtained only from unfair preference recoveries, it is submitted that the Court is entitled, in its discretion, to determine for practical reasons, and reasons of proportionality, that the Applicant would be justified in treating such funds as property of the Companies, meaning that the statutory priorities provided for in section 556 of the Corporations Act should apply in each case.
[18] This can be inferred from Viscariello v Macks (2014) 103 ACSR 542 at [737]-[738].
[19] NA Kratzmann Pty Ltd v Tucker (No 2) (1968) 123 CLR 295 at 300-301; Re Fresjac Pty Ltd (in liq) (1995) 65 SASR 334 at 343-347; Cook v Italiano Family Fruit Co Pty Ltd (2010) 190 FCR 474 at [10]-[62]; Jones v Matrix Partners Pty Ltd [2018] FCAFC 40.
[20] Viscariello v Macks (2014) 103 ACSR 542 at [737]-[738].
[21] Affidavit of Mr Basedow dated 15 January 2024, [4]-[5].
[22] Affidavit of Mr Basedow dated 15 January 2024, [7] and [13].
The reference in the footnote to the first paragraph from these submissions was a reference to some financial records from the liquidations of the Companies prepared by Mr Macks’ office, and reproduced as a series of tables in Kourakis CJ’s reasons at the paragraphs cited. The tables presented, in various ways, the receipts and payments from the liquidations, broken into those that were referrable to the realisation of assets the subject of a fixed and floating charge, and those that were referrable to the unfair preference claims and other general aspects of the liquidations. The tables referred to modest recoveries from fixed charge assets ($23,869 for Bernsteen, and $5,476 for Newmore), all of which had been absorbed by the costs associated with those recoveries. As for the receipts and payments referrable to floating charge assets and other aspects of the liquidations, the tables included the following information:[23]
[23] The numbers vary slightly between the tables.
Bernsteen
Newmore
Realisations from floating charge assets
$275,742
$142,865
Trading losses
($67,572)
($52,667)
Mr Macks’ (PPB) fees[24]
($85,361)
($19,205)
Legal fees
($213,890)
($9,566)
Funds available from floating charged assets
($91,081)
$61,426
Employee priority payments
($193,434)
($60,787)
Net position in relation to charge assets
($284,516)
$639
Realisations from uncharged assets (including preference recoveries)
$825,257
$235,222
Mr Macks’ (PPB) fees (unpaid)
($450,735)
($201,692)
Special purpose liquidator fees (unpaid)
($345,653)
($13,617)
Liquidation costs (excluding legal)
($63,881)
($17,357)
Legal fees
($476,374)
($150,588)
Add back certain liquidator and legal fees[25]
$259,971
Net position from non-charged assets
($251,415)
($148,032)
Net position overall
($535,931)
($147,391)
[24] One of the tables contained a note to the effect that there was a significant amount of further PPB fees that would be claimable, being in the nature of fees necessarily incurred but not specifically relating to the realisation of floating charge assets; but that inclusion of these would require significant work in analysing the more general work done by PPB.
[25] The tables add back fees incurred in respect of some proceedings post 1 June 2005, presumably on the basis that this work was the subject of the allegations of breaches of duty in the Supreme Court proceedings.
The submissions then set out relevant aspects of the statutory priority of payments from a liquidation under ss 555 and 556(1) of the Corporations Act, including reference to the following paragraphs from s 556(1):
(a)first, expenses (except deferred expenses) properly incurred by a relevant authority in preserving, realising or getting in property of the company, or in carrying on the company’s business;
…
(dd) next, any other expenses (except deferred expenses) properly incurred by a relevant authority;
(de) next, the deferred expenses;
…
A ‘relevant authority’ is defined to include a liquidator, and ‘deferred expenses’ are defined to include liquidator’s remuneration.[26] Various forms of employee entitlements rank next in priority, and hence ahead of ordinary unsecured creditors, under ss 556(1)(e), (g) and (h).[27]
[26] Corporations Act, s 556(2).
[27] See also the reference later in these reasons to 561 of the Corporations Act, which operates to give these employee entitlements priority over creditors with a floating charge (referred to as a circulating security interest).
Whilst noting that Mr Macks had previously drawn some remuneration from Bernsteen and Newmore, it was not proposed that any steps be taken to consider this given the (limited) available resources. Instead the submissions noted that Mr Basedow proposed that, in the case of Bernsteen, the remaining funds be distributed proportionately pursuant to s 556(1)(dd) between the claims for disbursements by Mr Sheahan and Mr Basedow on a proportionate basis. As the funds remaining would not cover all disbursements, there would be no need to consider payment of any remuneration (as deferred expenses under s 556(1)(de)). In the case of Newmore, the remaining funds would be used first to meet the claims for disbursements by Mr Sheahan and Mr Basedown, and then next to pay remuneration to Mr Sheahan, Mr Macks and Mr Basedow based upon their claims for remuneration.[28] The submissions noted that Mr Sheahan and Mr Macks had agreed to the proposed distribution.
[28] In the case of Mr Macks, using only his unpaid remuneration.
On 19 January 2024 there was a hearing before Judge Dart. In his Honour’s remarks, his Honour noted the nature of the application, the fact that none of the liquidators were being fully paid their remuneration, and that there was no prospect of a return to creditors. His Honour adjourned the matter to a later date.
There was a further hearing before Judge Dart on 14 February 2024. On that occasion, his Honour heard brief oral submissions from Mr Leech, on behalf of Mr Basedow, essentially reflecting the written submissions summarised above. During the hearing, the matters addressed included: the difficulty and potential lack of utility in attempting to reconcile the records over the history of the administrations; the information available from the schedules of realisations and payments which had been included in Kourakis CJ’s reasons in the Supreme Court proceedings; the expense likely to be associated with identifying and notifying creditors in circumstances where there was no prospect of any dividend to them; ASIC’s neutral position; and the pragmatism and proportionality underpinning Mr Basedow’s proposed approach to the funds left in the liquidations. Reference was made to the potential for work to be done to determine whether any of the funds remaining on hand in the liquidations were referable to the realisation of floating charge assets. Whilst it was pointed out that this work may not end up providing any clarity, and so simply reduce the amounts payable to the liquidators in accordance with the proposed proportionate payments, counsel for Mr Basedow acknowledged that it was possible that the work may reveal that the funds do come from realisations of floating charge assets, with the result that there was no basis upon which the applicant could seek to be paid.[29]
[29] As explained later, properly understood this was not an acknowledgment that a secured creditor such as Mr Viscariello might be entitled to a distribution; rather it was merely an acknowledgment that Mr Basedow might miss out in favour of others, such as Mr Macks and employee creditors, who might take in priority to him.
Judge Dart ultimately made orders in the terms sought; that is, he made orders under s 90-15 of the IPS to the effect that Mr Basedow was justified in making the proposed payments of the funds remaining in Bernsteen and Newmore, in the proportions and amounts identified, to Mr Basedow, Mr Macks and Mr Sheahan on account of their disbursements and remuneration. His Honour gave the following ex tempore reasons for the orders he made:
Bernsteen Pty Ltd and Newmore Pty Ltd have been under external administration since 2001. The present liquidator seeks orders in relation to the payment of disbursements and remuneration for moneys held in the two administrations. He is the second liquidator having replaced Mr Macks in 2015. For a period of time Mr John Sheahan was a special purpose liquidator of the companies.
The application has been served on ASIC and both of the former liquidators. The former liquidators agree to the proposed distribution of the funds. ASIC take no position in relation to the matter. The total funds available are not sufficient to meet the unpaid disbursements and approved remuneration. It is for that reason that there is simply no utility in serving the creditors of the company. That would simply increase the costs and be of no commercial benefit to anybody. There is no prospect of the creditors receiving a return.
One issue arises because there is a secured creditor with a fixed and floating charge. Pursuant to the principles in Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 a liquidator may recoup costs and expenses incurred in realising the property subject to the security from the property that is realised. It is only those costs and expenses. Other costs and expenses must be met from other funds.
Separately in these administrations there were a number of unfair preference claims. Moneys recovered from those claims are simply the property of the companies and are not subject to the fixed and floating charge.
A difficulty arises because it is not presently possible to identify the character of the funds held in the administrations. They could be funds from assets that were subject to the security or they could be from the recovery of unfair preferences. There is simply no way of establishing the character of the moneys. If the moneys are floating charge assets the cost of the work to try and establish the nature of the moneys would be irrecoverable from the floating charge assets. It may, in any event, be a complex process with no guarantee that there will ever be any clarity.
The liquidator notes that s 545 of the Corporations Act provides that a liquidator need not perform work in a winding up where there are no assets to meet the costs of doing the work. That is clearly the case here. The various liquidators will receive part of their costs and disbursements only. Large portions will remain unpaid. The undertaking of further work will just make the position worse.
In the circumstances, as a matter of pragmatism, it is appropriate for the liquidator to treat all of the funds as being recovered from unfair preference claims and therefore simply moneys of the two companies that have been wound up. It follows that the money should be distributed in accordance with the priorities provided for in s 556 of the Corporations Act. The proposed minutes share the moneys between the three liquidators in an agreed proportion. That is the appropriate way to apply s 556. I will make an order in terms of the minutes.
The matter was then adjourned on the basis that before Mr Basedow could seek orders under s 480 of the Corporations Act to release him as liquidator and deregister the Companies, it was necessary to file further affidavit material and to serve creditors, in accordance with rule 7.5 of the Corporations Rules 2003 (SA).
There was a further directions hearing on 2 May 2024, when the matter was adjourned to allow for creditors to be served and to file any objection to the proposed orders under s 480.
On 8 May 2024, Mr Basedow filed an interlocutory process seeking his release and the deregistration of the Companies. He also filed an affidavit in which he confirmed that distributions had been made in accordance with Judge Dart’s 14 February 2024 orders, and summarised the steps that had been taken to finalise the liquidations of the Companies.
On 14 May 2024, Ms Morris (a paralegal from Cowell Clarke) filed an affidavit of service. She explained that ASIC had been served with the 8 May 2024 interlocutory process and third Basedow affidavit, and had acknowledged service. Ms Morris also attached lists of the creditors, employee creditors and contributories of Bernsteen[30] and Newmore,[31] together with their addresses. She explained that she had posted letters to each of the creditors, employee creditors and contributories of the Companies, annexing copies of the interlocutory process, and the statement of financial position and summary of Mr Basedow’s receipts and payments for the company of which they were a creditor or contributory.
[30] Which included 136 names and addresses.
[31] Which included 108 names and addresses.
On 27 May 2024, there was a further hearing before Judge Dart. His Honour was informed that an error had occurred in the service of the interlocutory process and so it would need to be served again.[32] The matter was adjourned to 16 July 2024 to allow this to occur.
[32] A subsequent affidavit reveals that there was an error in postage payment through Australia Post, leading to a concern that service may not have been completed.
By affidavit dated 12 June 2024, Ms Morris confirmed that she had re-served the creditors, employee creditors and contributories of the Companies.
On 15 July 2024, Mr Leech filed an affidavit confirming that Cowell Clarke had not received any notice of objection to the release of Mr Basedow as liquidator pursuant to rule 7.6 of the Corporations Rules. Mr Basedow also filed an affidavit sworn that date confirming that the lists of creditors, employee creditors and contributories used for the purposes of service were lists maintained by him, and that he had not received any objection to the interlocutory process.
On 15 July 2024, Cowell Clarke filed submissions in support of the orders sought in the interlocutory process. The submissions referred to various rules within the Corporations Rules, and the steps that had been taken to comply with those rules. This included reference to rule 2.8(3), which requires service upon ASIC of any application under s 480 for the release of a liquidator and deregistration of a company; rule 7.5, which sets out various requirements in relation to the matters to be included in the affidavit in support of any such application and the requirement that the interlocutory process, statement of financial position and summary of the liquidator’s receipts and payments, be served upon each creditor and contributory; and rule 7.6, which requires that any creditor or contributory who wishes to object file and serve a notice of objection within 21 days, and that the liquidator must then within three days, serve any objecting creditor or contributory with a copy of the affidavit supporting the interlocutory process.
By reference to the affidavits that had been filed, the submissions identified the steps that had been taken to comply with these rules. The submissions stated that ‘[t]here is nothing more for the Applicant to do in connection with either of the Companies. He holds no funds and any claims would be well out of time. No objection has been raised and ASIC has not taken any steps.’
On 16 July 2024, there was a hearing before Auxiliary Judge Flourentzou. Mr Leech attended on behalf of Mr Basedow. Mr Leech made submissions in support of the application to release and deregister. After giving a brief background to the matter, Mr Leech outlined the steps that had been taken to comply with the relevant rules from the Corporations Rules. Mr Leech addressed the steps that had been taken to effect service. He explained the difficulty that had arisen with the first attempt to serve the creditors and contributories; and that the process had then been undertaken for a second time. Mr Leech disclosed to the judge that the list of creditors (including employee creditors) and contributories was old, and it was to be expected that some addresses might not be up to date; and that, consistently with this, a number of ‘return to sender’ responses had been received. Mr Leech submitted that it was neither necessary, nor a sensible use of resources, for Mr Basedow to chase down current addresses for all of those on the lists, particularly bearing in mind that s 545 of the Corporations Act provides that a liquidator need not undertake work where there are no assets to meet the costs incurred.
The judge expressed her satisfaction that the liquidator had used his best endeavours and that, particularly bearing in mind Judge Dart’s earlier observations to the effect that creditors were not likely to receive any return, accepted that there was no utility in taking further steps to notify creditors.
Auxiliary Judge Flourentzou ultimately ruled that ‘[b]ased on counsel’s submissions and the evidence that has been filed in support, I am are satisfied that it is appropriate to make the orders sought’. Her Honour then made orders that Mr Basedow be released as the liquidator of each of Bernsteen and Newmore, and that ASIC deregister the Companies.
Mr Viscariello’s involvement
On 29 July 2024, Mr Viscariello filed an interlocutory application, seeking orders that he be joined as an interested party, that the orders made be stayed, and that the proceedings be reopened.
In Mr Viscariello’s supporting affidavit sworn 28 July 2024, he said that he first became aware of these proceedings when he noticed them in the cause list on 16 July 2024. He then explained his basis for seeking the orders sought.
Mr Viscariello said that he was a director and shareholder of both companies, and a secured creditor of Newmore. He referred to his complaints about the conduct of Mr Macks in relation to the liquidations of the Companies, and the proceedings that had occurred in the Supreme Court.
Mr Viscariello said that since Mr Basedow’s appointment as the replacement liquidator of the Companies in 2015, he had made Mr Basedow aware of his claim as a secured creditor. He had, in the past, been in regular communication with Mr Basedow about his claim as a secured creditor of Newmore. He said he was awaiting Mr Basedow’s determination of his claim as a secured creditor. If he had known of these proceedings, he would have sought to challenge Mr Basedow’s decision to pay any funds at all to Mr Macks or Mr Sheahan. However, he claimed not to have received any communication about, or notice of, these proceedings, whether in his capacity as a secured creditor of Newmore or otherwise. Indeed, he claimed to have good reason to believe that:
Mr Basedow has been secretly working in conjunction with Mr Macks and perhaps others since his appointment in 2015 to manufacture and engineer an outcome that would result in unlawfully defeating and subverting [his] lawful security interests in Newmore so that the funds controlled by Mr Basedow could be unlawfully distributed for the benefit of himself, Macks and his colleagues without giving [him] any opportunity to investigate or challenge his conduct, his fees or how and when they were approved and by whom or to be heard on any decision he made or proposed to make concerning [his] security.
On 2 August 2024, there was a hearing before Auxiliary Judge Flourentzou. Both Mr Leech (for Mr Basedow) and Mr Viscariello appeared. Some timetabling orders were made, and the matter was listed for argument before Judge Dart on 13 August 2024.
In an affidavit sworn 7 August 2024, Mr Basedow referred to his correspondence with ASIC in which it had indicated that it had processed the forms intended to give effect to the 16 July 2024 orders on 30 July 2024. As a result, Mr Basedow had ceased to be the liquidator for the Companies, and the deregistration of the Companies was scheduled for 31 October 2024.
Mr Viscariello filed a further affidavit, sworn 12 August 2024. He exhibited a number of documents upon which he intended to rely. He also complained that Mr Basedow had relied upon lists of creditors which were over 20 years old, and had not been required to obtain current addresses for creditors of the Companies. He alleged that there had been a deliberate disregard for compliance with Mr Basedow’s statutory obligations and proper process.
Written submissions were filed on behalf of Mr Basedow and by Mr Viscariello.
There was a hearing before Judge Dart on 13 August 2024. Mr Leech appeared for Mr Basedow, and Mr Viscariello also attended. In the remarks on the court record from that hearing, Judge Dart made some observations to the effect that Mr Viscariello sought to be joined as an interested party, and to reopen and set aside the orders that had been made, on the basis that he was a secured creditor of Newmore and his claim had been ignored. His Honour noted that Mr Basedow took a different view; that the interests of secured creditors had not been overlooked; that it was not clear how the interests of justice would justify setting aside the orders made; and that there was, in any event, no utility, or commercial purpose, in the application because there were no funds available to meet a claim of a secured creditor. The judge then noted that the matter had been listed before him while he was on leave, and decided that it was preferable that the matter be referred for hearing before a justice of this Court, both because his Honour had previously done work for Mr Viscariello and because of its complexity:
I acted for Mr Viscariello fairly extensively in relation to these liquidations prior to my appointment. I do not feel comfortable dealing with this matter, nor do I think it is appropriate to do so. The matter is complex and should go into the Justice’s Chamber List.
There was then a hearing before McIntyre J on 23 August 2024. Again, Mr Leech and Mr Viscariello attended. The record of outcome records a decision to hear Mr Viscariello’s application to be joined as an interested party as a preliminary issue, and that Mr Viscariello foreshadowed amending his application. Her Honour set a timetable for any amended application, and the exchange of submissions, and listed the matter for argument on 15 October 2024.
On 17 September 2024, Mr Viscariello filed an amended interlocutory application (FDN 36). The application sought a number of orders relying upon various provisions of the Uniform Civil Rules 2020 (SA) (UCR), the Corporations Rules, the Corporations Act and the IPS, and the inherent jurisdiction and powers of the Court. The first three orders sought in the application were that Mr Viscariello (i) be joined as a respondent,[33] (ii) be joined as an interested party,[34] or (iii) have permission to be heard.[35] The application also sought orders reopening the proceedings,[36] setting aside or revoking the orders made by Auxiliary Judge Flourentzou on 16 July 2024 and by Judge Dart on 14 February 2024, that Mr Basedow repay Bernsteen and Newmore the monies paid out pursuant to the 14 February 2024 orders, that Mr Basedow deliver up to Mr Viscariello all the books of Newmore relevant to these proceedings, that there be an inquiry into the conduct of Mr Basedow concerning the subject matter of these proceedings, and that Mr Basedow pay costs and interest.
[33] As defined in r 1.5 and pursuant to r 2.13 of the Corporations Rules, or as defined in r 21.1(3) and pursuant to r 22.1 of the UCR.
[34] As defined in r 21.1(4) and pursuant to r 22.1 of the UCR.
[35] Pursuant to r 2.13(1) of the Corporations Rules.
[36] Pursuant to r 186.1 of the UCR or in the Court’s inherent jurisdiction.
The argument listed for 15 October 2024 proceeded on the basis of the amended interlocutory application, and addressed the first three orders sought in the application (joinder as a respondent, joinder as an interested party and permission to be heard). Mr Viscariello also sought a stay of the orders made in July 2024.
The relevant rules
Determination of Mr Viscariello’s application required consideration of various of the Corporations Rules and UCR.
Commencing with the Corporations Rules, under rule 1.3(1), those rules apply to a proceeding under the Corporations Act, unless the Court otherwise orders. However, under rule 1.3(2), the UCR apply to the extent they are relevant and are not inconsistent with the Corporations Rules.
Rule 1.5 of the Corporations Rules defines a ‘respondent’ as a person ‘against whom relief (except interlocutory relief) is claimed under the Corporations Act … whether in the originating process or not’.
Further, rule 2.13 provides for certain persons (including a person who is, or who claims to be, a creditor of a corporation) to be given leave to be heard without being a party to proceedings, or to be added as a respondent, in certain circumstances:
2.13 Leave to creditor, contributory or officer to be heard
(1) The Court may grant leave to any person who is, or who claims to be:
(a) a creditor, contributory or officer of a corporation; or
(b) an officer of a creditor, or contributory, of a corporation
to be heard in a proceeding without becoming a party to the proceeding.
(2)If the court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, and that the costs should be borne by the person to whom leave was granted, the Court may:
(a) direct that the person pay the costs; and
(b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction.
(3)The Court may order that a person who is, or claims to be, a creditor, contributory or officer of a corporation be added as a respondent to the proceeding.
(4)The Court may grant leave to a person under subrule (1), or order that a person be added as a respondent to a proceeding under subrule (3):
(a) on application by the person or a party to the proceeding; or
(b) on the Court’s own initiative.
…
Turning to the UCR, rule 21.1 relevantly provides as follows in relation to the various types of parties:
21.1—Party types
(1) Parties to an action are either applicants, respondents or interested parties.
(2) An applicant is a party (whenever joined) seeking final relief from the Court in the action.
(3) A respondent is a party (whenever joined)—
(a) against whom final relief is sought from the Court in the action; or
(b) whose interests may be directly and adversely affected by the orders sought in the action.
(4) An interested party is a party (whenever joined) who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result.
The joinder of parties is dealt with under rule 22.1 of the UCR:
22.1—Joinder of parties
(1) The Court may at any stage order the joinder of a party to a proceeding or appellate proceeding on such conditions as it thinks fit.
(2) Unless the Court otherwise orders, a person may only be joined as an applicant or appellant if the person consents to being so joined.
(3) An application by a person to be joined as a party must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
(4) The Court may order that a proceeding or appellate proceeding be treated as having been commenced by or against or in respect of the joined party on a date specified by the order.
The reasons of McIntyre J
In her reasons published on 29 October 2024,[37] McIntyre J dismissed Mr Viscariello’s application and declined to grant a stay.
[37] Re Bernsteen Pty Ltd (in liq) and Newmore Pty Ltd (in liq) [2024] SASC 125 (McIntyre J’s reasons).
As McIntyre J observed at the outset of her reasons,[38] the essence of Mr Viscariello’s submissions in support of the relief he sought was that he was a secured creditor and his involvement was essential to address alleged procedural irregularities in the conduct of the liquidations and these proceedings, and to protect his proprietary and financial interests.
[38] McIntyre J’s reasons at [1].
McIntyre J commenced the operative section of her reasons by noting that whilst Mr Viscariello claimed to be a director, shareholder and creditor of both Newmore and Bernsteen, he only claimed to be a secured creditor of Newmore. In respect of Bernsteen, he claimed only to be an unsecured creditor. Her Honour explained that it was unclear on what basis Mr Viscariello sought to be joined to, or heard in relation to, the proceedings relating to Bernsteen. Her Honour dismissed his application insofar as it related to Bernsteen as ‘no proper basis has been identified that would permit his being joined or otherwise heard in relation to that liquidation’. Her Honour added that she would, in any event, have dismissed the application in relation to Bernsteen for the same reasons she dismissed his application in relation to Newmore.[39]
[39] McIntyre J’s reasons at [18].
Turning to Mr Viscariello’s application in relation to Newmore, McIntyre J noted that Mr Basedow had conceded, for the purposes of these proceedings, that Mr Viscariello was a secured creditor of Newmore, but opposed his application to be joined or heard.[40]
[40] McIntyre J’s reasons at [19].
McIntyre J summarised Mr Viscariello’s submissions as being to the effect that, as a secured creditor of Newmore, he had an interest in the company’s assets and standing to participate in the proceedings to ensure that his interest in the assets, including distributions, is protected. He sought to be joined to address what he contended were procedural irregularities in the way the liquidations generally, and these proceedings, had been conducted. In this way, he sought to address not only his interest in the distributions made at the conclusion of the windings up, but also to examine the historical conduct of the liquidations, and in particular the conduct of Mr Macks. Mr Viscariello argued that his joinder was necessary to prevent (further) prejudice to his interests; that his involvement would assist in ensuring a more just and equitable outcome of the liquidations, and adherence to the relevant legal requirements; and that it would not delay or complicate the proceedings.[41]
[41] McIntyre J’s reasons at [19]-[27].
McIntyre J rejected Mr Viscariello’s reliance upon rule 22.1 of the UCR. Her Honour considered that rule to be inconsistent with the Corporations Rules, which provided for certain persons to be heard without being joined (rule 2.13(1)) and for a different test for joinder (rule 2.13(3)). In her Honour’s view, the appropriate vehicle for considering Mr Viscariello’s application was rule 2.13 of the Corporations Rules; in particular, it was appropriate to consider whether he should be given leave to be heard under rule 2.13(1), or joined as a respondent under rule 2.13(3).[42]
[42] McIntyre J’s reasons at [28].
Addressing first whether Mr Viscariello should be joined as a respondent under rule 2.13(3) of the Corporations Rules, McIntyre J reasoned that, even accepting Mr Viscariello’s status as a secured creditor of Newmore, the Court ‘must exercise its discretion in determining whether his joinder is necessary for the proper resolution of the proceedings. Joinder is not automatic and is typically granted only where the proposed party’s participation is essential to safeguard their legal rights or to assist in resolving matters before the Court’.[43]
[43] McIntyre J’s reasons at [29].
McIntyre J was not satisfied that Mr Viscariello’s interest, as a secured creditor, in the conduct of the liquidations was sufficient to justify joinder:[44]
Secured creditors are protected by the statutory framework governing liquidations, which provides for mechanisms for ensuring that their interests are accounted for without requiring their formal participation in every aspect of the liquidation. Mr Viscariello has not identified any immediate threat to those rights that would justify his joinder. The matters that he complains of do not concern these proceedings but rather relate to the conduct of the liquidation.
[44] McIntyre J’s reasons at [30].
Whilst referring to the challenges sought to be made to the orders made in these proceedings, including in relation to the payment of the liquidators’ fees, McIntyre J considered that they lacked a proper evidential or legal basis. Her Honour also considered that there were other avenues for Mr Viscariello to pursue those issues.[45]
[45] McIntyre J’s reasons at [30].
McIntyre J also rejected Mr Viscariello’s contentions concerning procedural deficiencies in these proceedings. She said that whilst there were some delays in complying with the rules, they were ultimately complied with. She said that the delays were minor, and did not affect the validity of the proceedings or prejudice Mr Viscariello’s rights as a secured creditor.[46]
[46] McIntyre J’s reasons at [31].
McIntyre J held that the question to be resolved when considering potential joinder under rule 2.13(3) of the Corporations Rules was whether the person is a necessary party to the proceedings.[47] Her Honour referred to authority to the effect that winding up proceedings do not, at least in a legal sense, affect the interests of shareholders.[48] Their status as a shareholder remains unaffected, and they continue to have the rights attaching to that shareholding, including an entitlement to receive a return of capital and such dividend as there may be upon liquidation. In McIntyre J’s view, the same is true of creditors, even secured creditors.[49]
[47] McIntyre J’s reasons at [32]; citing Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1338 at [22]-[23] (Barrett J) and Re Ballistic Australia Pty Ltd [2014] NSWSC 1495 at [5]-[6] (Brereton J).
[48] Re Ballistic Australia Pty Ltd [2014] NSWSC 1495 at [6] (Brereton J).
[49] McIntyre J’s reasons at [33].
McIntyre J then made some observations about the orders made in February 2024 (under s 90-15 of the IPS, and to the effect that Mr Basedow was justified in distributing the funds remaining in the Companies on account of liquidators’ disbursements and remuneration) and July 2024 (under s 480(d) of the Corporations Act, and to the effect that Mr Basedow be released as liquidator and the Companies be deregistered).
As to the former, her Honour noted that the orders, which were made in the context of a liquidator’s application for directions and in terms that Mr Basedow was justified in acting on a particular basis, provided Mr Basedow with protection from liability, but were not binding.[50] An application for directions is an administrative non adversary proceeding, which does not have a respondent in the conventional sense.[51] Further, and in any event, the orders made had been acted upon and the fees paid. The Companies no longer had any funds to conduct any review and, in any event, Mr Basedow was no longer their liquidator. As such there was no utility in the orders being set aside.[52]
[50] McIntyre J’s reasons at [35]; citing Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679-680 (McLelland J).
[51] McIntyre J’s reasons at [36]; citing Re JW Murphy & PC Allen; Re BPTC Ltd (in liq) (1996) 19 ACSR 569 at 570 (McLelland CJ).
[52] McIntyre J’s reasons at [37].
It may be accepted that directions under s 90-15, given their rationale explained earlier in these reasons, are ordinarily prospective in nature.[116] The exercise of that power ordinarily involves a focus upon whether a proposed or future course of conduct is in the company’s or liquidation’s best interests, with any order usually expressed in terms that the liquidator ‘is justified’ in taking the relevant step or course. It does not usually involve ratifying action that the liquidator has already taken.
[116] Re Octaviar Ltd (in liq) [2016] NSWSC 16 at [14]-[17] (Brereton J); Re Kimberley Diamonds Ltd (in liq) [2018] NSWSC 1106 at [10]-[12] (Black J); Re One.Tel Ltd (2014) 99 ACSR 247 at [55] (Brereton J).
However, given the broad and flexible nature of the power under s 90-15, it is not clear that it is strictly confined to making directions which are entirely prospective in nature.[117] Certainly there is no express limitation upon the Court’s power under this section.
[117] Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167 at [10], [14] (Warren J); Re Read; Australian Securities & Investments Commission v Forrestview Nominees Pty Ltd (in liq) (2007) 164 FCR 237 at [35], [40]-[41] (French J); Re Bell Group Ltd (in liq) (2013) 97 ACSR 117 [34], [43] (Allanson J); Re One.Tel Ltd (2014) 99 ACSR 247 at [56], [60] (Brereton J); Re Mirabela Nickel Ltd (in liq); Ex Parte Madden [2018] WASC 335 at [104]-[119] (Vaughan J).
We do not think the present case calls for any detailed consideration of the extent to which there may be a limit upon the Court’s power to give directions under s 90-15 which have some retrospective effect. Whatever limit might exist, we do not think it would operate to preclude the directions that were given here, let alone provide a basis to challenge the payments that were made.
The impugned directions did not grant retrospective approval or ratification of some entirely separate transaction or step in the liquidations. To the extent that the impugned directions related to payments of expenses that had already been made, they were nevertheless payments which were bound up in, and incidental to, the application seeking prospective approval of the payments of remuneration that Mr Basedow intended to make. The application sought directions that Mr Basedow would be justified in paying remuneration on a basis that included having first met these expenses out of the funds on hand. Importantly, the impugned directions also sought to address whether Mr Basedow would be justified in proceeding on a basis that involved allocating those expenses equally between the two companies. In this way, even the impugned aspect of the directions involved, at least to some extent, addressing the appropriateness of proceeding, or at least continuing to proceed, with the finalisation of the liquidations on a particular basis.
Particularly bearing in mind the modest amounts involved, and the absence of any apparent basis for impugning the payments made by way of filing and legal fees, we do not consider that any retrospective aspect of the directions provided a proper basis for permitting Mr Viscariello to be joined or heard so as to embark upon an application to reopen Mr Basedow’s application and challenge the February 2024 orders.
Nor is there any merit in the contended failure to disclose that the filing and legal fees had been paid prior to the orders being made. Whilst the issue may not have been the subject of any significant consideration, it was inherent in the terms of the amended relief sought that these amounts had already been paid. And there was nothing inappropriate about these payments being made without first seeking approval.
We also reject as unmeritorious Mr Viscariello’s contention that Judge Dart erred in failing to consider whether the direction sought amounted to an inappropriate attempt to have the Court make a commercial judgment that should have been a matter for Mr Basedow. There is ample authority for the proposition that the order of priorities in making distributions is a matter that may properly be the subject of advice and directions under s 90-15 of the IPS.[118]
[118] Re BCA National Training Group Pty Ltd (in liq) [2023] NSWSC 366; upheld in Commonwealth of Australia v Tonks (2023) 383 FLR 297.
Mr Viscariello also seeks to challenge the decisions of Judge Dart and Auxiliary Judge Flourentzou on the basis that their reasons were perfunctory and inadequate. We do not agree that their reasons were inadequate.
The principles governing the adequacy of reasons are well known and need not be set out. Importantly, consideration of the adequacy of a judge’s reasons requires a contextual approach which has regard to matters including the nature of the relevant application or hearing, the issues raised and the extent of any opposition. What is required in the case of reasons for judgment following a complex and contested trial will differ markedly from what might be required following an uncontested interlocutory application. Indeed, depending upon the nature of the application and the matters in issue, the latter may not require any reasons at all.
Judge Dart’s ex tempore reasons were succinct, but clearly set out the critical steps in the reasoning underpinning his preparedness to make the orders sought. His Honour summarised the nature and content of the application, and the identified roles of the liquidators who were to be paid. He noted that ASIC had been served and took no position. He identified the issue that arose as a result of the difficulty in identifying the source of the funds on hand, and the significance of this for the priority of payments from the funds on hand, with particular reference to the Universal Distributing principle. He considered the significance and appropriateness of proceeding on the basis that the funds were proceeds from unfair preference claims, and determined that it was appropriate to proceed on this basis and to apply the order of priorities in s 556 of the Corporations Act accordingly.
In our view, nothing more was required. On interlocutory matters of this nature, particularly where they are not contested, brevity and efficiency are to be encouraged. In circumstances where his Honour’s reasons demonstrated a clear understanding of the issues to be considered, and the key steps in his Honour’s reasoning towards the conclusion he reached, there is no merit in the complaint about the adequacy of his reasons.
Auxiliary Judge Flourentzou did not deliver any reasons of substance; her reasons were confined to a statement, at the conclusion of argument, that ‘[b]ased on counsel’s submissions and the evidence that has been filed in support, I am satisfied that it is appropriate to make the orders sought’. Her Honour then made the orders sought under s 480(d) that Mr Basedow be released as the liquidator of the Companies, and that ASIC deregister the Companies.
However, considered in context, this was enough. On the one hand, an application to release a liquidator and deregister a company under s 480(d) may be a matter of significant consequence. On the other hand, as reflected in the authorities mentioned earlier in these reasons,[119] determination of the application will often be a fairly routine matter, with the appropriateness of the order flowing almost inevitably from satisfaction that there has been compliance with the statutory preconditions to the orders being made, and the absence of any opposition. In this case, Mr Basedow had filed evidence establishing compliance with all of those preconditions, with the only apparent concern being the difficulty in ensuring full compliance with the requirements of service. Although her Honour did not make reference to this issue in formal reasons or remarks at the conclusion of the hearing, her approach to the issue was nevertheless plain from her exchanges with counsel and the conclusion she expressed during the course of the hearing. It is clear that she considered that, despite the incomplete service that had been achieved, she was satisfied that Mr Basedow had done all that was reasonably required of him, particularly in circumstances where she understood that there was no realistic prospect of any return to creditors. Whilst it is not always appropriate to rely upon judicial statements during the course of submissions in determining the adequacy of a judge’s reasons, we see no difficulty in doing so in the present case.
[119] See footnote 84.
In summary, in the circumstances of an uncontested interlocutory application, where the affidavit evidence clearly set out the steps that had been taken to ensure compliance with the relevant statutory preconditions to an order under s 480(d), and the only issue was one of the adequacy of Mr Basedow’s attempts to serve creditors and contributories, we are not persuaded that there is merit in Mr Viscariello’s challenge to the adequacy of Auxiliary Judge Flourentzou’s reasons.
Mr Viscariello also complains that Judge Dart ought to have disqualified himself on the basis of a reasonable apprehension of bias. The only matter advanced in support of this complaint is a reference to his Honour’s observations about his previous dealings with Mr Viscariello at the hearing on 13 August 2024, and decision to refer the matter to another judge for hearing. Mr Viscariello submitted that if his Honour’s previous dealings with Mr Viscariello gave rise to an apprehension of bias at that point, he ought to have disqualified himself prior to making the orders he made in February 2024.
There are several difficulties with this submission. We have summarised the relevant context earlier in these reasons. As explained, the 13 August 2024 hearing occurred after Mr Viscariello had become involved and was seeking to agitate the matters the subject of this appeal. The first point to note in answer to Mr Viscariello’s submissions is that his Honour did not formally disqualify himself. Whilst his Honour said that, by reason of his having acted for Mr Viscariello in relation to these liquidations, he did not feel comfortable dealing with the application and did not think it was appropriate that he do so, he did not expressly state that his concerns rose as high as a reasonable apprehension of bias. And he did not make any formal order disqualifying himself. His Honour merely referred the matter to a justice of the Court, at least in part on the basis that it was (now) complex and warranted the attention of a justice rather than a master.
More fundamentally, even if Judge Dart’s previous dealings with Mr Viscariello justified or required his disqualification as at August 2024, it does not necessarily follow that he was disqualified from hearing the application he heard back in February 2024. As explained, that earlier hearing was concerned with an apparently confined application which did not squarely raise any particular issue relating to Mr Viscariello.
In any event, this Court has not been provided with any information as to the nature and circumstances of Judge Dart’s previous retainer by Mr Viscariello. We are simply not in a position to form a view that there is sufficient substance in Mr Viscariello’s desire to challenge Judge Dart’s orders on the ground of a reasonable apprehension of bias for this to be a matter that carries much weight in determining whether the interests of justice favour granting leave to appeal.
For completeness, we reject Mr Viscariello’s submission to the effect that an apprehension of bias could be inferred from some of the observations made by Judge Dart during the course of the hearing on 13 August 2024. In particular, we reject Mr Viscariello’s submission that his Honour’s observations on that occasion involved the expression of conclusions about the merits which were inappropriately intended to influence subsequent judicial consideration of the matter. The transcript on that occasion indicates that his Honour was intending merely to gain a proper understanding of the matters sought to be raised so that he could determine the appropriate procedural course to adopt.
In summary, we are not persuaded that Mr Viscariello’s complaints of error in the decisions made by Judge Dart and Auxiliary Judge Flourentzou are reasonably arguable. But even if arguable, we are not persuaded that they are matters of sufficient substantive or practical force to justify Mr Viscariello being joined or heard. In other words, they are not sufficient to establish error in McIntyre J’s exercise of her discretion to refuse Mr Viscariello’s application to be joined or heard.
Adequacy of McIntyre J’s reasons
Separately from his complaints about the adequacy of the reasons of Judge Dart and Auxiliary Judge Flourentzou, Mr Viscariello also complains about the adequacy of McIntyre J’s reasons. However, his submission that her Honour ‘ignored the critical procedural and legal principles at stake’ was unsubstantiated and lacking in merit. It is trite that adequacy does not require that a judge’s reasons address every submission in detail, or indeed at all. It is sufficient that the reasons address the key matters in issue, and identify the key steps in the judge’s dispositive reasoning. As is apparent from the summary set out earlier in the reasons, McIntyre J’s reasons were relatively detailed, and clearly set out the key steps in her Honour’s reasoning process. Whilst she did not separately address every submission made by Mr Viscariello, she was not required to do so. The complaint of inadequacy in McIntyre J’s reasons is not reasonably arguable.
Leave to appeal
Having canvassed what we consider to be the lack of merit, and practical substance, in the matters sought to be raised by Mr Viscariello, it is appropriate to return to the issue of leave to appeal.
In our view, Mr Viscariello has not established that the interests of justice lie in favour of a grant of leave. Many of the complaints he seeks to raise are confined to procedural matters with no apparent substantive or practical significance. Some of the arguments that he seeks to pursue potentially raise points of principle. However, as we have sought to explain, Mr Viscariello has not established any reasonable prospect of these arguments succeeding on the basis of the evidence and circumstances relevant to the present liquidations.
Mr Viscariello argues that it should not be for him to unravel what has happened in the liquidations, and why no monies have flowed through to him as a secured creditor in particular. He argues that it should be for Mr Basedow to explain what has happened, and why the liquidations have continued for so long without any outcome for creditors. Whilst we appreciate the difficulties Mr Viscariello faces, he has had a number of years to take steps to advance his complaints to a point where he could identify a proper evidential basis for them.[120] This is in circumstances where he has been aware of the general progress (or lack of progress) in the liquidations throughout, and has had ample opportunity to take steps to address what he contends are the deficiencies in what has occurred. Unparticularised assertions and speculation are not enough at this stage of these liquidations and proceedings.
[120] See the reference to similar considerations in the context of a refusal to reinstate a company in GIS Electrical Pty Ltd v Melsom (2002) 172 FLR 218 at [63]-[67] (Steytler J, Templeman and Miller JJ agreeing).
We accept that upon the orders for the release of Mr Basedow and deregistration of the Companies taking effect, there will be significant practical difficulties in the way of Mr Viscariello pursuing the matters he seeks to pursue. However, in our view, that is just the reality of the stage which these liquidations and proceedings have reached. The interests of proportionality, utility and finality must weigh heavily.
Significantly, there is also an overriding lack of utility in Mr Viscariello’s arguments and position. Even if some of his complaints had force, it is difficult to see how granting Mr Viscariello leave to be joined or heard could result in a more favourable outcome for him, or for other creditors or shareholders. As things presently stand, there are no funds in the liquidations of Newmore or Bernsteen. Even if there were a proper basis for thinking that this Court might somehow require that the funds which have been distributed be repaid to those companies, the funds on hand would remain limited. As reflected by the principle enshrined in s 545(1) of the Corporations Act, Mr Basedow would not generally be expected to undertake any significant work without being paid for that work. In the absence of any suggestion of external funding, whether from Mr Viscariello or otherwise, it is difficult to see how Mr Basedow could be directed to undertake any significant further work.
Far from ensuring a more appropriate outcome for creditors or shareholders, it seems inevitable that permitting further legal disputation in relation to the liquidations of Newmore and Bernsteen could only add to the already significant sum of unpaid fees of liquidators and other professionals. None of the other creditors seek to have the liquidations of the Companies continue. Nor does ASIC suggest that that should occur.
For the reasons given, the proposed appeal lacks merit and utility, and it is appropriate that the application for leave to appeal be refused.
To the extent that Mr Viscariello maintains his complaint that McIntyre J erred in refusing a stay of the order made for the deregistration of the Companies, that complaint has no merit in circumstances where leave to appeal is to be refused.
Addendum
Since preparing these reasons, we have had the opportunity to read a draft of the Chief Justice’s reasons. Whilst there is, with respect, force in the observations he makes as to the importance of procedural fairness, we adhere to our view that any concern in that regard is outweighed, in the circumstances of this case, by considerations of futility and finality. In particular, we would emphasise a few matters in response to the suggestion that Mr Viscariello ought to be given an opportunity to seek further information in relation to any balance remaining in the fixed assets fund.
The first is that Mr Viscariello’s claim to be a secured creditor relates only to Newmore and not Bernsteen. The second is that, in asserting a potential claim to a share in the funds that remained on hand at the time these proceedings commenced, Mr Viscariello focussed very much upon his claim upon the floating assets fund rather than the fixed assets fund. Quite apart from the fact that the fixed assets fund for Newmore appears to have been quite modest (perhaps only a few thousand dollars), it is not clear to us that there is any realistic basis for suggesting that there would be any positive balance after allowing for Universal Distributing costs. The third is that, even accepting that it is realistic to think that further records might be readily available in relation to the balance in the fixed assets fund, to achieve anything more than a token outcome for Mr Viscariello, the information before this Court suggests that Mr Viscariello would need to establish that there remained a positive balance in the floating assets fund. In this respect at least, there seems no basis to go behind the evidence as to the likely difficulty (and, for the reasons we have explained, likely futility) of this task. Fourthly, even if it were realistic to think that further work might reveal a positive balance in either the fixed assets fund or the floating asset fund, it would still be necessary for Mr Viscariello’s claim to be a secured creditor of Newmore, and indeed to rank ahead of the other secured creditor, to be resolved.
It is for these reasons (essentially, the lack of apparent merit in the proposed appeal, combined with the concerns with futility and finality), that we have concluded that the interests of justice do not favour a grant of leave to appeal.
Conclusion
We would refuse the applications for leave to appeal and a stay pending appeal.
Mr Basedow’s notice of alternative contention does not arise for consideration.
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