Viscariello v Legal Practitioners Conduct Board

The Supreme Court of South Australia, constituted by Gray, Sulan and Blue JJ, heard an appeal by Mr Viscariello against findings of professional misconduct made by a disciplinary tribunal. The dispute concerned Mr Viscariello's actions in amending a trust deed and subsequently transferring property, which the Legal Practitioners Conduct Board alleged were undertaken with the purpose of defeating adverse costs orders made against a company he was involved with, J & L Developments Pty Ltd.

The primary legal issues before the court were whether the tribunal's findings that Mr Viscariello's amendment of the Stirling Trust deed in June 2004, and his subsequent actions in 2006 involving the removal of J & L Developments as trustee and the transfer of property, were made with the intention of defeating adverse costs orders, were reasonably open on the evidence. The court was required to determine if these actions constituted professional misconduct.

The court dismissed Mr Viscariello's appeal, finding that the tribunal's conclusions were well-supported by the evidence. Regarding the 2004 amendment, the court noted Mr Viscariello's own admissions in evidence before Debelle J and in a letter to the Board, which clearly indicated his intention to protect the Stirling property from potential costs orders. The court found that even though the costs had not yet been taxed, the liability was not merely theoretical, as costs orders had already been made and further costs were being incurred in ongoing appeals. The court held that such actions could be voidable even if directed at future or contingent creditors. However, the court found that the tribunal's findings in relation to the 2006 events were not open on the charge as presented.