Mark Hoffmann QC
| Admitted | Admitted to practice in South Australia, Western Australia, New South Wales, Northern Territory, Victoria and Federal and High Courts |
| Academic Qualifications | University of Adelaide Bachelor of Laws (Honours) |
Areas of Practice
- Commercial Litigation
- Corporations and Securities Law
- Insolvency, Bankruptcy and Liquidation Law
- Trade Practices and Competition Law
Professional Experience
| 1987 | Associate - Supreme Court of South Australia Justices Matheson and Cox |
| 1988 - 1989 | Solicitor - Thomson Simmons & Co |
| 1989 | Senior Associate - Thomson Simmons & Co |
| 1989 - 1991 | Senior Associate - Fisher Jeffries |
| 1991 - 2001 | Partner - Fisher Jeffries |
| 2000 | Chairman of Partners - Fisher Jeffries |
| 2002 | Barrister - Edmund Barton Chambers |
| 2003 | Barrister - Bar Chambers |
| 2006 | Queen's Counsel - Bar Chambers |
Recent Litigation
Since joining the Bar I have been retained as Counsel in a range of commercial matters including:
- Numerous insolvency related claims for and against liquidators/external administrators.
- Carter & Another v Gartner(2003) 130 FCR 99
- Gartner v Carter [2004] FCA 258
- Harvey v Burfield (2004) 88 SASR 541
- ASIC v Mercorella (No 2) (2006) 230 ALR 598
- ASIC v Mercorella (No 3) (2006) 58 ACSR 40
- Nicol v PGLE Pty Ltd [2006] FCA 1669
- Re Westgate Wool Co Pty Ltd (In Liq) (2007) 60 ACSR 570
- Numerous Harris Scarfe Ltd (In Liq) decisions listed below
- Re JN Taylor Holdings Ltd (In Liq) [2001] SASC 193
- Acting for Elders Ltd in a dispute in relation to a distribution contract for agricultural inputs:
- Elders Ltd v Incitec Pivot Ltd [2006] SASC 99.
- Acting for Australian Agricultural Company Limited in a claim for misleading and deceptive conduct and breach of an alleged process contract by an unsuccessful tenderer:
- Australia Agricultural Company Ltd v AMP Life Ltd and Another [2006] FCA 371.
- Acting for Radio Rentals Ltd defending an action by the ACCC alleging unconscionable conduct:
- ACCC v Radio Rentals Ltd (2005) 146 FCR 292.
- Acting for Coonawarra Premium Vineyards Limited and Southcorp Wines Pty Ltd respectively in disputes arising out of grape supply contracts:
- Coonawarra Premium Vineyards Limited v Nugan Group Pty Ltd [2005] SASC 42; [2006] SASC 5
- Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2006] VSC 234.
- Acting for Metcash Limited, Coles Myer Limited and Western Mining Corporation Pty Ltd in disputes with respective landlords as to the construction and interpretation of leases.
- Acting for a designer/manufacturer in a claim arising out of allegedly defective wine cask taps:
- Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd & Anor (2004) 237 LSJS 350.
- Acting for a group of investors in a retirement village development involving claims of misleading and deceptive conduct and breach of fiduciary duty by promoters and trustees:
- Todber Pty Ltd and others v Glendale RV Syndication Pty Ltd and Others (2004) 211 ALR 390
- Defending Macquarie Bank Ltd in claims of breach of contract, negligence and misleading and deceptive conduct by brokers/financiers:
- David Benson Nominees Pty Ltd v Dicksons Ltd and Another [2005] SASC 97
- Stringer v Dicksons Ltd & Another [2005] SASC 98.
- Acting for Futuris Corporation Limited and its subsidiary Acehill Investments Pty Ltd in opposing a scheme of arrangement between Incitec Limited and Pivot Limited and subsequent oppression proceedings:
- Acehill Investments Pty Ltd v Incitec Limited [2002] SASC 344; (2003) 85 SASR 452
- Numerous shareholder disputes:
- DI Fishing Pty Ltd; York Civil Pty Ltd; Northline Freight Pty Ltd; Louminco Pty Ltd.
- Schemes of Arrangement:
- Incitec Ltd/Pivot Limited; BRL Hardy Limited/Constellation Brands Inc; Minotaur Resources Limited/Oxiana Limited;Gropep Limited/Novozymes SA.
- Corporate Control disputes:
- Flinders Diamonds Ltd/Tiger International Resources
- Toll Holdings Limited/Patrick Corporation Ltd.
- A prosecution for ASIC of a banned director for contempt:
- ASIC v Reid [2004] FCA 1506; ASIC v Reid [2005]FCA 1274; ASIC v Reid (2005) 55 ACSR 152; ASIC v Reid [2006] FCA 699; ASIC v Reid [2006] FCA 700;
- Reid v ASIC [2006] FCAFC 185 (appeal subsequently abandoned).
- Representing individuals and firms subject of regulatory investigations.
Insolvencies
- J N Taylor Holdings Limited (In Liquidation) – 1991-2001
The JN Taylor group collapsed with a deficiency of $250 million. Initially retained as solicitor and junior Counsel for minority preference shareholders in seeking acquisition of shares under the Takeovers Code and subsequently proceeding for the appointment of provision of liquidators. See Zempilas v JN Taylor Holdings Limited (No 2) (1990) 3 ACSR 103 and numerous related decisions. Principal solicitor and junior Counsel for liquidators. Investigations including numerous examinations resulted in litigation in Australia, England, New Zealand and Jersey involving claims against directors, third parties for knowing assistance in breach of trust, insurers and challenges to securities. See Pascoe Limited (In Liq) v Lucas (1999) 33 ACSR 357; Fenbury Limited (In Liq) v HSBC (1996) 189 LSJS 348; Pascoe v DFC [1994] 3 NZLR 62; JN Taylor Holdings Ltd v Bond and American Home Assurance (1993) 59 SASR 432 (the first occasion where joinder of an insurer to an action by a plaintiff not party to the insurance policy was permitted); Re Bell Group Ltd And Anor (1997) 25 ACSR 707 and Westpac v Totterdell (1998) 20 WAR 150 (disputed proof of debt). This administration also involved a number of hearings in the High Court of Australia. Recoveries resulted in a full return to creditors and a dividend to shareholders.
- Southern Equities Corporation Limited (In Liq), formerly Bond Corporation Holdings Limited (SECL) – 1993-2002
SECL Collapsed with a deficiency exceeding AUD$2 billion. I was principal solicitor in all aspects of the winding up of SECL until my retirement from Fisher Jeffries in June 2001. During this period I was assisted by personnel of Fisher Jeffries and in particular Jason Karas (now of Lipman Karas) in the investigation and prosecution of numerous claims on behalf of the liquidator. Investigations including numerous examinations (in Australia, England, USA, Jersey, Canada and The Bahamas) resulted in a number of significant legal actions and substantial recoveries. Numerous contested examinations – See SECL; Re Caboche v England (1997) 25 ACSR 394. In the context of the proceedings against the family of Alan Bond (Action No 113 of 1996), I appeared as Counsel and was successful in obtaining Mareva Orders enjoining dealings in a large residential sub-division in Brisbane, Queensland. See SECL v Bond (No 3) [2000] SASC 318; Caboche v SECL[2001] SASC 55 (Full Court).
The trial of the proceedings in SECL v Bond commenced in February 2001 and ultimately settled at the end of March 2001 with a full recovery to the administration. I appeared as Counsel at the trial and in this regard. See SECL v Bond (2001) 78 SASR 554.
In the context of the investigation of SECL’s claim against its former auditors Arthur Andersen in respect of their conduct of the audit of the 1988 accounts of SECL, I and those assisting me made extensive use of the Liquidator’s examination powers in Australia and by way of letters of request in England and the United States. Invariably the orders for examination were challenged both in Australia, the United States and England. Each of the challenges was successfully defeated and examinations/depositions conducted. In England, Arthur Andersen were initially successful in resisting the Liquidator’s letter of request for orders for assistance under section 426 of the English Insolvency Act. The decision of Judge Weeks QC was appealed and the English Court of Appeal unanimously upheld the appeal and ordered the examination of a partner of Arthur Andersen based in London – see England v Smith [2001] Ch 419. In excess of $300 million recovered for creditors.
- Bell Group NV (In Liq) – 1996-2001
Bell Group NV is a Netherlands Antilles subsidiary of the Bell Group Limited (In Liq). I was principal solicitor (assisted by Jason Karas) and Junior Counsel for the liquidator, Garry Trevor until my retirement from Fisher Jeffries. Investigations including examinations resulted in a number of actions in the Supreme Court of Western Australia. Substantial recoveries were achieved from litigation brought against directors and auditors, Coopers & Lybrand, in the Supreme Court of Western Australia.
Bell Group NV v Aspinall (1998) 19 WAR 561. - Normans Wines Limited (In Liq) – 2002-2005
Normans Wines was a public listed wine company with operations nationally and internationally. Retained as Counsel supervising solicitors and accountants in the investigation of the collapse and claims against auditor Deloitte Touche Thomatsu and former directors. Numerous examinations of auditors, directors, officers, and various third parties.
See Harvey v Burfield (2004) 88 SASR 541.Preparation and prosecution of a claim for AUD$20 million arising out of the audits of the accounts of Normans for the financial years 1995 through 1999. Claim successfully resolved following a mediation in late 2004 resulting in substantial recoveries for convertible note holders and unsecured creditors.
- Gartner Wines Pty Limited (Receivers and Managers Appointed) (In Liq) – 2002-2004.
Gartner Wines was one of a group of thirteen companies controlled by the Gartner family, the largest private land owners in the Coonawarra District of South Australia. Retained as Counsel in all aspects of the matter. The receivership involved some AUD$30 million and was extensively contested there having been numerous transactions seeking to put assets beyond the receivers. Thirteen Federal Court, Supreme Court and District Court actions brought by or against the receivers (or their appointor) were successfully resolved following a mediation in March 2004.
See Gartner v Ernst & Young (No 2) [2003] FCA 1436
Gartner v Ernst & Young (No 3) [2003] FCA 1437
D’Arrigo v Carter (2003) 44 ACSR 162
Carter v Gartner (2003) 130 FCR 94
Gartner v Carter [2004] FCA 258 - ASIC v Mercorella 2005 -
Mr Joe Mercorella conducted an unregistered managed investment scheme or “ponzi scheme” which collapsed in July 2005 with a deficiency of some $80 million. Retained as counsel for the liquidators. Numerous examinations conducted. Proceedings to set aside securities and for recovery of assets commenced.
See Australian Securities and investments Commission v Mercorella (No 2) (2006) 230 ALR 598;
Australian Securities and Investments Commission v Mercorella (No 3) (2006) 58 ACSR 40;
Australian Securities and Investments commission v Mercorella (No 4) [2006] FCA 873. - Harris Scarfe Limited (In Liq) 2005 -
Harris Scarfe was a South Australian based retailer with operations in all States save Queensland and the Northern Territory. Retained as Counsel for numerous creditors defending unfair preference claims.
- Re Harris Scarfe Ltd (In Liq) (2006) 203 FLR 46
- Davies v Chicago Boot Co Pty Ltd (No 2) [2007] SASC 12 (Full Court)
- Gazal Apparel Pty Ltd v Davies and Others [2007] SASC 91 (Full Court)
- Dwyer & Anor v Canon Australia Pty Ltd and Others [2007] SASC 100
- Dwyer & Anor v R-Jay Pty Ltd [2007] SASC 115.
Project Litigation
- Duke Group Ltd (In Liq) v Arthur Young (Reg) 1989-1991
Acting for liquidator in action for negligence against Arthur Young arising out of the preparation out of s12(g) report in respect of the reverse takeover of Kia Ora Gold NL by Duke Holdings Ltd. Solicitor assisting and Junior Counsel in relation to the opening and business records aspects of the trial which proceeded for 16 months prior to settlement.
See Duke Group Ltd (In Liq) v Arthur Young (Reg), Peat Marwick Hungerfords (1990) 55 SASR 11; (1991) 3 ACSR 147.
- JN Taylor Holdings Limited (In Liquidation) v Bond, Mitchell and Oates 1991-1995
Principal solicitor and junior Counsel in action against directors for breach of their statutory and fiduciary duties. Insurer subsequently joined as a defendant in the proceedings. Proceedings successfully resolved following six weeks of trial.
See Bond v JN Taylor Holdings Ltd (1992) 57 SASR 38 (Full Court);
JN Taylor Holdings Ltd v Bond and American Home Assurance (1993) 59 SASR 432 (Full Court) - Executor Trustee Australia Limited and Ors v KPMG Peat Marwick Hungerfords – 1993-1996
Audit negligence action arising out of the collapse of Excel Finance Corporation Ltd (Receivers and Manager appointed). Retained as principal solicitor and Junior Counsel for the trustee for debenture holders in Excel Finance seeking $35 million in damages. The litigation was successfully settled following four months of trial with a very substantial recovery to the plaintiffs. See Executor Trustee Australia Ltd & Others v Peat Marwick, Hungerfords (reg) (1994) 63 SASR 393.
- Independent Resources Ltd (In Liq) (“IRL”) v Ernst & Whinney; Spargos Mining NL v Ernst & Whinney – 1994-1995
Retained as principal solicitor on behalf of Ernst & Whinney in respect of a claim by the Liquidator of IRL in the Supreme Court of South Australia seeking damages of $100 million for alleged negligence in the preparation of an independent expert’s report and a claim in the Supreme Court of Western Australia by Spargos Mining NL for $15 million, again for alleged negligence in connection with the preparation of an independent expert’s report. The claim of the Liquidator was successfully defended and resolved prior to trial for less than 1% of the amount claimed. A similar result was achieved in relation to the Spargos Mining NL claim.
- Beneficial Finance Corporation Limited (“BFC”) v Price Waterhouse – 1993-1997
Retained in late 1993 as a consultant to the Attorney-General of South Australia as principal solicitor and Junior Counsel for Beneficial Finance Corporation Limited in proceedings against Price Waterhouse for alleged negligence in the conduct of some six annual and half yearly audits of BFC. This engagement involved my investigating and preparing on very short notice (together with David Cross of Ernst & Young) a statement of claim to avoid the effluxion of statutory time limits and thereafter my supervision of a group of some twenty solicitors and clerks employed and/or retained by the South Australian Crown Solicitor’s Office for the purpose of the conduct of this claim. The action not only involved some six audits, but losses arising out of some ninety separate loan transactions. A number of contested interlocutory disputes were argued including disputes in relation to access to the professional indemnity insurance of Price Waterhouse. See BFC v Price Waterhouse (1996) 68 SASR 19 Ultimately the claim was resolved in 1997 together with a claim against KPMG by the State Bank of South Australia for some $120 million and other consideration.
- Southern Equities Corporation Limited (In Liq) (SECL) v Arthur Andersen – 1995-2002
From 1994 until my retirement as a partner of Fisher Jeffries in June 2001 I was principal solicitor and appeared as Junior Counsel on behalf of SECL in proceedings against Arthur Andersen. These proceedings arose out of Arthur Andersen’s audit of the 1988 accounts of SECL and involved some nineteen different transactions, many of which were extremely complex. Responsible for supervising a number of personnel at Fisher Jeffries and liaising with independent experts from Ernst & Young, Price Waterhouse Coopers, Deloitte Touche Thomatsu and Edwards Marshall & Co. Retained as Junior Counsel to Allan Myers QC at the trial of this action together with Mark Livesey. The trial proceeded for five months before settling on 21 May 2002 for a substantial sum, the amount of which is confidential.
See Southern Equities Corporation Ltd (In Liq) v Arthur Andersen (1997) 70 SASR 166;
Southern Equities Corporation Ltd (In Liq) v Arthur Andersen (No 9) [2002] SASC 118;
Southern Equities Corporation Limited (In Liq) v Arthur Andersen (No 10) (2002) 82 SASR 53; Southern Equities Corporation Limited (In Liq) v Arthur Andersen (No 11) (2002) 82 SASR 63. - Futuris Corporation Limited v IAMA Limited and Wesfarmers Limited – 2000-2001
Dispute in respect of takeover of IAMA Limited. Retained as principal solicitor and Junior Counsel. Proceedings before the Supreme Court of South Australia alleging breaches of chapter 6 of the Corporations Act by Wesfarmers Ltd and oppression of the Futuris Corporation Ltd subsidiary New Ashwick by IAMA. Proceedings against Iama Limited for inspection orders pursuant to s247A of the Corporations Act. The litigation was successfully resolved in early 2001. See New Ashwick Pty Ltd v Wesfarmers Ltd (2000) 35 ACSR 263.
- Futuris Corporation Limited v Incitec Limited and Orica Limited – 2002-2003
Dispute involving three top 100 listed companies. Briefed as Counsel by Fisher Jeffries and worked full time on the matter between September 2002 and the end of January 2003. Three actions:
- Application in the Supreme Court of South Australia to inspect books of Incitec. Orders for inspection made in favour of Futuris. See Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344.
- Contested application opposing approval of a scheme of arrangement pursuant to section 411 of the Corporations Act in the Supreme Court of Victoria. Incitec scheme dismissed with Incitec to pay Futuris’ costs.
- Proceedings in the Supreme Court of South Australia for oppression of minority shareholders against Incitec pursuant to sections 232 and 233 of the Corporations Act. Orders for the appointment of a new sub-committee to conduct Incitec’s affairs made. See Acehill Investments Pty Ltd v Incitec Ltd (No 2) (2003) 85 SASR 45
- Flinders Diamonds Ltd v Tiger International Resources Inc – 2003-2004
Dispute involving a relevant agreement between substantial shareholders in breach of chapter of the Corporations Act. Proceedings commenced to enjoin proposed meeting of members to remove incumbent board, to restrain the furtherance of the relevant agreement and for dispositions of shares. See Flinders Diamonds Ltd v Tiger International Resources Inc (2003) 45 ACSR 608; (2004) 88 SASR 281.
- T O’Connor Holdings Ltd (Receiver & Manager appointed) v Ernst & Young - 1992
Acting for Ernst & Young in relation to Receiver’s investigation/examination of the audit of T O’Connor Holdings Ltd. No action pursued.
Corporate Control Disputes
- Magnacrete Limited
See Magnacrete Ltd v Douglas-Hill and Anor (1988) 48 SASR 567. - Poseidon Limited
See TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156. - Iama Limited
See New Ashwick Pty Ltd v Wesfarmers Limited (2000) 35 ACSR 263. - Flinders Diamonds Limited
See Flinders Diamonds Limited v Tiger International Resources Inc (2004) 88 SASR 281. - Patrick Corporation Limited