Macks v Viscariello

(2017) 130 SASR 1; [2017] SASCFC 172

South Australia Full Court

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Interrogate

Catchwords

1. Corporations
2. › Management and Administration
3. › Duties and Liabilities of Officers
4. › Officers of Insolvent Corporations
5. › Liquidator
6. › Duty of care and diligence under s 180 Corporations Act 2001 (Cth)
7. › Whether liquidator breached duty by continuing protracted litigation disproportionate to amounts at stake
8. › Whether findings of collateral and improper purpose supported by evidence
9. › Corporations Act 2001 (Cth), ss 180, 181, 182
1. Corporations
2. › Winding Up
3. › Liquidators
4. › Supervision of Liquidators
5. › Conduct of litigation by liquidator
6. › Whether liquidator acted with improper purpose in pursuing proceedings
7. › Whether Briginshaw standard applied to allegations of breach of statutory duties
8. › Corporations Act 2001 (Cth), ss 180, 181, 182
1. Corporations
2. › Voluntary Administration
3. › Administrator
4. › Functions, Powers, Rights and Liabilities
5. › Whether administrator owed fiduciary duty to disclose all material information to creditors
6. › Whether administrator's conduct was in trade and commerce
7. › Whether administrator breached duty by failing to put DOCA proposal to creditors' meeting
8. › Corporations Act 2001 (Cth), ss 439A, Part 5.3A
1. Appeal and New Trial
2. › Appeal
3. › General Principles
4. › Interference with Judge's Findings of Fact
5. › Functions of Appellate Court
6. › Whether appellate court should set aside findings where primary judge failed to adequately deal with evidence
7. › Whether delay in delivery of reasons constituted error resulting in miscarriage of justice
8. › Whether Briginshaw principle was properly applied

Quick Take

State Supreme Courts have power under their general declaratory jurisdiction (here s 31 Supreme Court Act 1935 (SA)) to declare that a liquidator or other officer has contravened ss 180-182 of the Corporations Act, notwithstanding the civil penalty declaration regime in Part 9.4B. The Briginshaw standard applies to allegations of improper purpose against liquidators, and findings of collateral purpose require careful engagement with the evidence. A liquidator may breach s 180 CA by failing to take reasonable steps to resolve protracted litigation that is disproportionate to the amounts at stake. An administrator does not owe a fiduciary duty to disclose all material information to creditors.