Mark Hoffmann KC

Admitted

Admitted to practice in South Australia, Western Australia, New South Wales, Northern Territory, Victoria and the High Court of Australia

Admitted in the High Court of Hong Kong on 12 April 2017 for purposes of the trial in action HCCL 14/2014 - Orient Power Holdings Limited (Receivers and Managers appointed) (in Liquidation) v Ernst and Young

Academic Qualifications

University of Adelaide

Bachelor of Laws (Honours)

Member: Bar Chambers, Adelaide

Associate Member: 9 Selborne Chambers, Sydney

President: South Australian Bar Association, 2018 - 2022

Professional Experience

1987	Associate to Justices Matheson and Cox, Supreme Court of South Australia
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

 

Over 30 years’ experience practising throughout the Supreme and Federal Courts of Australia in commercial litigation with an emphasis on audit and accounting negligence, complex insolvencies and project litigation.

Class Actions

Since 2014, I have been briefed to defend or prosecute a number of complex class actions, as set out below.

• Clarke v Sandhurst Trustees Limited – 2014 – 2019

These proceedings arose out of the collapse of Wickham Securities Limited (in Liquidation), a Queensland based Chapter 2L debenture issuer of which Sandhurst Trustees Limited was the trustee for debenture holders. Proceedings were commenced initially seeking pre-action disclosure, subsequently under Part 5.9 of the Corporations Act 2001 and ultimately by way of a Class Action in Federal Court Action QUD591/2015 alleging numerous breaches of duty by Sandhurst.

Numerous contested hearings occurred in the course of the proceedings, which ultimately were resolved following a Court ordered mediation and a protracted settlement approval process.

• Clarke v Sandhurst Trustees Ltd [2014] FCA 580
• Sandhurst Trustees Ltd v Clarke and Another [2014] FCA 841
• Sandhurst Trustees Ltd v Clarke and Another [2015] FCAFC 21; (2015) 321 ALR 1
• Clarke v Sandhurst Trustees Ltd [2017] FCA 401
• Clarke v Sandhurst Trustees Ltd (No 2) [2018] FCA 511
  
  
• Smith v Sandhurst Trustees Limited, Federal Court of Australia Action No. NSD 488 of 2018

These proceedings arose out of the collapse of GR Finance Limited (in Liquidation) a Chapter 2L debenture issuer of which Sandhurst Trustees Limited was the trustee for debenture holders: Hodges v Sandhurst Trustees Ltd [2018] FCA 1346

• Lifeplan Australia Friendly Society Limited & Ors v McGraw-Hill Financial Inc trading as S&P Global Inc, Federal Court of Australia Action No. NSD 417 of 2016

Acting for Lifeplan Australia Friendly Society and a number of other institutions that acquired SCDOs rated by the International Rating Agency Standard and Poor’s. The proceedings involved numerous contested claims and complex expert evidence as to the appropriateness or otherwise of the process by which S&P rated the SCDOs. The proceedings resolved at mediation.

• Mitsub Pty Ltd v McGraw-Hill Financial Inc (No 2) [2016] FCA 1285
• Lifeplan Australia Friendly Society Ltd v S&P Global Inc [2018] FCA 379
• Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289

• Perazzoli v BankSA, Federal Court of Australia Action No. SAD 307 of 2014

Class action against BankSA (a division of Westpac Banking Corporation) for alleged knowing participation in breaches of fiduciary duty by Michael Samra, the principal of Adelaide Lending Centre Pty Ltd (in Liq). Adelaide Lending Centre conducted a ponzi scheme using accounts maintained at Bank SA. The proceedings ultimately resolved following a number of mediations.

• Perazzoli v BankSA (No 5) [2018] FCA 1187
• Perazzoli v BankSA, a Division of Westpac Banking Corporation Ltd [2019] FCA 1707

• Furnell & Ors v Shahin Enterprises Pty Ltd, Federal Court of Australia Action No. SAD 76 of 2020

Defending proceedings commenced by Mr Aaron Furnell and others on behalf of five groups of employees alleging various underpayments and alleged unlawful deductions across a six-year period involving collective agreements and a Modern Award.

• Furnell & Ors v Shahin Enterprises Pty Ltd [2021] FCA 73; (2021) 386 ALR 245

Appeals

Appellate Advocacy in Supreme and Federal Courts.

• Recent Appeals:
• Macks v Viscariello (2017) 130 SASR 1
• Bedrock Construction Pty Ltd v Crea [2021] SASCA 66
• Brackenridge v Bendigo and Adelaide Bank Limited [2021] SASCA 129

Insolvency / Investigation and Proceedings

• Numerous insolvency related claims for and against liquidators/external administrators arising out of large and complex corporate collapses including:
• JN Taylor Holdings Limited (in Liq)
• Bond Corporation Holdings Limited (Southern Equities Corporation Ltd) (in Liq)
• Bell Group NV (in Liq)
• Gartner Wines Pty Ltd (Receivers and Managers Appointed)
• Norman Wines Ltd (In Liq) (Receivers and Managers Appointed)
• Harris Scarfe Ltd (In Liq)
• Mercorella Ponzi Scheme
• Adelaide Lending Centre Ponzi Scheme
• Reseau International Trading Ponzi Scheme
• Australian Motor Finance Ltd (Receivers and Managers Appointed)
• Environinvest Ltd (In Liq) (Receivers and Managers Appointed)
• Great Southern Ltd (In Liq) (Receivers and Managers Appointed)
• Gunns Limited (In Liq) (Receivers and Managers Appointed)
• RiverCity Motorway Management Ltd (in Liq)
• Orient Power Limited (in Liq) Hong Kong
• NewSat Limited (in Liq) (Receivers and Managers Appointed)
• Gallop International Pty Ltd (in Liq)

• J N Taylor Holdings Limited (In Liq) – 1991-2001

The JN Taylor group collapsed with a deficiency of $250 million. I was initially retained as solicitor and junior counsel for minority preference shareholders in seeking acquisition of shares under the Takeovers Code and subsequent in proceedings for the appointment of provisional liquidators: Zempilas v JN Taylor Holdings Limited(No 2) (1990) 3 ACSR 103 and related decisions.

I then acted as principal solicitor and junior counsel for the liquidators. I conducted investigations including numerous examinations which resulted in litigation in Australia, England, New Zealand and Jersey involving claims against directors and third parties for knowing assistance in breach of trust, claims against insurers and challenges to securities. 

This administration also involved a number of hearings in the High Court of Australia. Recoveries in the administration resulted in a full return to creditors and a dividend to shareholders.

• 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 the Court permitted the joinder of an insurer to an action by a plaintiff which was not party to the insurance policy)
• Re Bell Group Ltd and Anor (1997) 25 ACSR 707 and Westpac v Totterdell (1998) 20 WAR 150
• Re JN Taylor Holdings Ltd (In Liq) [2007] SASC 193
• Counsel for J N Taylor Holdings Limited (In Liq) in Supreme Court of Western Australia Action COV 108B of 1991 in respect of the liquidator of The Bell Group Limited (in Liquidation) intended re-adjudication of the JN Taylor Proof of Debt admitted to proof in March 1996.  Appeared at 5-day trial before Pritchard J in September 2018.  Matter resolved as part of overall Bell Group settlement.

• Southern Equities Corporation Limited (In Liq), formerly Bond Corporation Holdings Limited (SECL) – 1993-2002

SECL Collapsed with a deficiency exceeding $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 (a number of which were contested) were conducted in Australia, England, USA, Jersey, Canada and the Bahamas, which resulted in a number of significant legal actions and substantial recoveries.

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.

• 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 in this regard: 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 successfully resisted challenges to the liquidators’ powers of examination in Australia, England and the United States, including in the United Kingdom Court of Appeal: England v Smith [2001] Ch 419. In excess of $300 million recovered for creditors as a result of these investigations.   

• 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 publicly listed wine company with operations nationally and internationally. I was retained as counsel to supervise the investigation of the collapse and claims against auditor Deloitte Touche Thomatsu and the former directors.

• Harvey v Burfield (2004) 88 SASR 541
• Harvey v Burfield (2002) 84 SASR 11
• Harvey v Liquidators Normans Wines Ltd (in Liq) [2003] SASC 192

Following these investigations and examinations, I was involved in the preparation and prosecution of a claim for $20 million arising out of the audits of the accounts of Normans for the financial years 1995 through 1999. The 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 landowners in the Coonawarra District of South Australia. I was retained as counsel in all aspects of the matter. The receivership involved some $30 million and was extensively contested, there having been numerous transactions seeking to put assets beyond the reach of the receivers. Thirteen Federal Court, Supreme Court and District Court actions which had been brought by or against the receivers (or their appointor) were successfully resolved following a mediation in March 2004.

• 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 – 2011

Joe Mercorella conducted an unregistered managed investment scheme or “ponzi scheme” which collapsed in July 2005 with a deficiency of some $80 million. I was retained as counsel for the liquidators, conducting examinations and proceedings to set aside securities and recover assets.

• Australian Securities and investments Commission v Mercorella (No 2) (2006) 230 ALR 598; [2006] FCA 763
• 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
• Sobey v Nicol and Davies [2007] FCA 921
• Sobey v Nicol and Davies (2007) 245 ALR 389; [2007] FCAFC 136

• Harris Scarfe Limited (In Liq) 2005 – 2009

Harris Scarfe was a South Australian based retailer with operations in all States save Queensland and the Northern Territory. I was retained as counsel for 30 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 Lt d 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) 62 ACSR 287
• Re Harris Scarfe (in liq) and Harris Scarfe Wholesale Pty Ltd (in liq) (No 2) [2007] SASC 186
• Re Harris Scarfe (in liq) and Harris Scarfe Wholesale Pty Ltd (in liq) (No 3) (2008) 65 ACSR 616
• Ansell Ltd & Ors v Davies and Ors (2008) 67 ACSR 356 (Full Court)
• Ansell Ltd & Ors v Davies [2008] HCA Trans 373 (special leave granted)

The claims were favourably settled following the grant by the High Court of special leave to appeal in respect of the construction of s 588FF(3) of the Corporations Act 2001 (Cth).

• Australian Motor Finance Ltd (Receivers & Managers appointed) 2009-2011

Retained as counsel for Receivers & Managers of AMFL, Craig Crosbie and Daniel Bryant of PPB, a provider of subprime motor vehicle finance with a book of $60 million.

• Proceedings in Federal Court action VID 247 of 2009 against directors of AMFL and related entities (summary judgment obtained against directors).
• Investigation of the collapse of AMFL involving the creation of some 900 fictitious loans by executive directors of AMFL, including the conduct of numerous examinations of directors, officers and auditors.
• Investigations of the conduct of the audits of AMFL by Bentleys MRI, including the conduct of examinations of engagement personnel.
• Proceedings in the Federal Court (VID 356 of 2011_ in respect of the conduct of the 2007 audit of AMFL (successfully settled at mediation July 2011).
• Crosbie v Bryant [2009] FCA 707
• Crosbie v Bryant [2009] FCA 1100
• AMFL v Angeleri [2009] FCA 370
• AMFL v Angeleri (No 2) [2009] FCA 1046
• AMFL v Angeleri (No 3) [2010] FCA 1431
• AMFL v Angeleri (No 4) [2011] FCA 285

• RiverCity Motorway Management Limited (in Liquidation) 2014 - 2016

Retained as counsel for Liquidators of RiverCity Motorway Management which developed the Clem7 tunnel under the Brisbane River.  Investigations of collapse including examinations of Directors, traffic forecaster, professional advisers and insurance brokers.  Various actions commenced and resolved.

• Re Owen; RiverCity Motorway Management Ltd (in liq) (No 2) [2016] FCA 708
• Re Owen; RiverCity Motorway Management Ltd (in liq) (No 3) [2016] FCA 1541

Project Litigation

• Duke Group Ltd (In Liq) v Arthur Young (Reg) 1989-1991

Acting as solicitor and junior counsel for the liquidator in relation to aspects of an action for negligence against Arthur Young arising out of the preparation out of a s 12(g) report in respect of the reverse takeover of Kia Ora Gold NL by Duke Holdings Ltd. The trial ran for 16 months prior to settlement: Duke Group Ltd (In Liq) v Arthur Young (Reg), Peat Marwick Hungerfords (1990) 55 SASR 11; (1991) 3 ACSR 147

• T O’Connor Holdings Ltd (Receiver & Manager appointed) v Ernst & Young - 1992

Acting for Ernst & Young in relation to the receiver’s investigation of the audit of T O’Connor Holdings Ltd, in respect of which no action was ultimately pursued.

• 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: 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 BFC in proceedings against Price Waterhouse for alleged negligence in the conduct of some six annual and half yearly audits of BFC. This engagement involved investigating and preparing on very short notice a statement of claim to avoid the effluxion of statutory time limits and thereafter supervision of a large team to conduct the claim. The action involved six audits and 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. 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: BFC v Price Waterhouse (1996) 68 SASR 19 

• 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. I was then 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 (confidential) sum.

• 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 in proceedings before the Supreme Court of South Australia alleging breaches of chapter 6 of the Corporations Act by Wesfarmers Ltd, oppression of Futuris Corporation Ltd’s subsidiary, New Ashwick, by IAMA and seeking inspection orders against IAMA pursuant to s247A of the Corporations Act. The litigation was successfully resolved in early 2001: New Ashwick Pty Ltd v Wesfarmers Ltd (2000) 35 ACSR 263

• Futuris Corporation Limited v Incitec Limited and Orica Limited – 2002-2003
  
  
• Successful application in the Supreme Court of South Australia to inspect the books of Incitec: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344.
  
  
• Successful opposition to approval of a scheme of arrangement pursuant to section 411 of the Corporations Act in the Supreme Court of Victoria: Re Incitec Ltd [2002] VSC 538
  
  
• Proceedings in the Supreme Court of South Australia for oppression of minority shareholders against Incitec pursuant to ss 232 and 233 of the Corporations Act, obtaining orders for the appointment of a new sub-committee to conduct Incitec’s affairs: 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 6 of the Corporations Act. Proceedings were commenced to enjoin a proposed meeting of members to remove the incumbent board, to restrain the furtherance of the relevant agreement and for dispositions of shares: Flinders Diamonds Ltd v Tiger International Resources Inc (2003) 45 ACSR 608; (2004) 88 SASR 281

• K & S Corporation Ltd v Another v KPMG & Others, 2007 – 2009

Acting for KPMG in defending claims by K & S Corporation Ltd of alleged breaches of contractual, statutory and tortious duties by KPMG as auditors, consequent on defalcations by its CFO. Proceedings successfully resolved following a mediation: K & S Corporation Ltd & Anor v KPMG & Others [2009] SASC 24

• Landmark Operations Ltd v J Tiver Nominees Pty Ltd 2006 – 2010

Acting for Landmark Operations Ltd in successfully bringing proceedings to recover debts of some $12 million and related securities and defending a cross-claim for negligence following a three month trial.

• Landmark Operations Ltd v J Tiver Nominees Pty Ltd (2008) 255 LSJS 163; [2008] SASC 133
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2008] SASC 322
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 118
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 273
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 329
• Landmark Operations Limited v Phyllis Blanche Taylor ADG218 of 2009
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd and Ors (No 3) [2009] SASC 329
• Landmark Operations Ltd v J Tiver Nominees Pty Ltd (No 4) [2010] SASC 20
• Tiver v The Official Trustee in Bankruptcy [2010] FCA 620

• Graziano v Graziano – 2007-2010

Dispute concerning termination of a partnership between brothers operating a substantial transport business. Retained as counsel successfully defending a four-week District Court trial and appeal to the Full Court.

• Graziano v Graziano [2009] SADC 132
• Graziano v Graziano [2008] SASC 142
• Graziano v Graziano [2010] SASCFC 76; (2010) 273 LSJS 553

• Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA – 2007-2011

Retained as counsel for Flottweg in a dispute as to the supply and installation of an allegedly defective olive oil processing line. The claim against Flottweg for breach of contract and misleading and deceptive conduct in relation to the capabilities of the processing line seeking damages in excess of $30 million was successfully defended in a 9-week trial in the Federal Court of Australia and on appeal. Subsequently obtained indemnity costs, a lump sum assessment of costs and costs against the director personally.

• Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632
• Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 5) [2009] FCA 571
• Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA [2010] FCAFC 62
• Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 6) [2011] FCA 688
• Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 7) 281 ALR 535

• SA Water – United Water International Pty Ltd 2009 – 2012
  
  
• Counsel for SA Water in a dispute arising out of a contract entered into in 1995 whereby SA Water outsourced the management and provision of services in respect of South Australia’s water infrastructure.
  
  
• Proceedings in the Supreme Court of South Australia in respect of 5 yearly pricing adjustments were resolved on the basis that the dispute be referred to expert determination: SA Water Corp v United Water International Pty Ltd [2009] SASC 383
  
  
• Then acted as counsel in the expert determination proceedings conducted by Lonergan Edwards.

• Environinvest Ltd (Receivers & Managers appointed) (in liq) v Webster & Ors 2011 – 2013

Counsel for the liquidator of Environinvest in respect of the investigation, preparation and prosecution of proceedings against the former auditors of Environinvest, a promoter of managed investment schemes for blue gums, broad acre crops and cattle. The claim was favourably settled on day 2 of trial: Environinvest Ltd (recs and mgrs apptd) (in liq) v Former partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller t/as HLB Mann Judd (Vic Partnership) (2012) 208 FCR 376

• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor 2009 – 2014

Counsel with Allan Myers QC for Quasar Resources in 5 actions (3 in the Supreme Court of South Australia and 2 in the Federal Court of Australia) arising out of a joint venture between Alliance and Quasar in respect of the Four Mile Uranium deposit 600km north of Adelaide in the Northern Flinders Ranges. The issues included a challenge to the validity of the determination of the chair of the joint venture management committee, alleged breaches of fiduciary duty arising out of entry into a native title mining agreement, pre-action discovery, declarations as to ownership of joint venture records, and an application to set aside an agreement to extend the earn in period in respect of an exploration licence.

• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2010] SASC 266; (2010) 272 LSJS 45
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2010] FCA 1415
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2011] SASC 90; (2011) 275 LSJS 166
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2) [2011] SASC 92; (2011) 275 LSJS 191
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2011] SASCFC 64
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 3) [2011] SASC 171
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 291
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2) [2012] FCA 507
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 3) [2012] FCA 812
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] HCATrans 215
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044
• Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 5) [2013] FCA 1045

• Angas Securities Limited (ASL), 2012 - 2017

Briefed for ASL, the largest Chapter 2L Debenture Issuer in Australia. Three actions were commenced by the trustee for debenture holders, the Trust Company Nominees Limited (VID 1361 of 2013, NSD 1333 of 2014 and NSD 469 of 2015), in which the trustee variously sought the appointment of receivers to ASL. The applications were successfully defended and orders were obtained for a Court approved run-off of the debenture book. Subsequently, the run-off was varied by further orders and a Court approved and ordered Scheme of Arrangement was effected.

• Trust Company (Nominees) Limited v Angas Securities Limited [2015] FCA 772, (2015) ACSR 464
• Trust Company (Nominees) Ltd v Angas Securities Ltd [2015] FCA 861
• Trust Company (Nominees) Limited, in the matter of Angas Securities Limited v Angas Securities Limited (No 3) [2016] FCA 895
• Trust Company (Nominees) Limited, in the matter of Angas Securities Limited v Angas Securities Limited [2016] FCA 1240

• ACCC v Nexans SA, 2013 - 2015

Briefed for Nexans SA, a Paris listed multi-national manufacturer and supplier of, among other things, high voltage cables, in defending proceedings brought by the ACCC in respect of alleged contraventions of the cartel provisions of the then Trade Practices Act by Nexans SA and Prysmian. The proceedings involved numerous contested interlocutory applications and subsequently a two-week trial, following which the ACCC’s claim was dismissed.

• Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2013] FCA 192
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 6) [2013] FCA 1002
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 7) [2014] FCA 5
• Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2014] FCA 255
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 9) [2015] FCA 623
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 10) (2015) 235 FCR 593
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 11) [2015] FCA 876
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 12) [2016] FCA 822
• Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 13) [2017] FCA 851

• Great Southern Limited (in Liquidation) (Receivers & Managers) – 2012 - 2016

Retained as counsel for the liquidators of Great Southern in relation to the investigation and prosecution of proceedings against former directors of Great Southern Finance Pty Ltd (in Liq) in connection with alleged breaches of duty arising of the loan book conducted by Great Southern Finance and claims against the auditors of the Great Southern Group, Price Waterhouse Coopers (successfully resolved at mediation in March 2016).

• Jones, Saker, Weaver and Stewart (Liquidators), in the matter of Great Southern Ltd (in liq) (Receivers and Managers Appointed) [2012] FCA 1072
• Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431; (2014) 103 ACSR 137
• Great Southern Ltd (in liq) (Receivers and Managers Appointed) v Young [2014] WASC 481
• Re Great Southern Ltd (In Liq); Ex Parte Great Southern Ltd (In Liq) and Others [2015] WASC 171

• Viscariello v Macks; ASIC v Macks, 2015 - 2021

Briefed for Peter Macks, a registered liquidator, who was the administrator and subsequently liquidator of Bernsteen Pty Ltd (in Liquidation) and Newmore Pty Ltd (in Liquidation) after he unsuccessfully defended proceedings commenced against him by their sole director Mr John Viscariello (see Viscariello v Macks [2014] SASC 189).

Appeared as counsel in a 5-day appeal before the Full Court of the Supreme Court of South Australia successfully setting aside the judgment of the trial judge in all respects save one, which was subsequently addressed and in effect set aside by Doyle J in ASIC v Macks (No 4).

• Viscariello v Macks (No 2) [2015] SASC 160
• Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1
• Macks v Viscariello (No 2) [2018] SASCFC 106
• In the Matter of Bernsteen Pty Ltd (In Liq) [2018] SASC 76
• In the Matter of Bernsteen Pty Ltd (In Liq) (No 2) [2018] SASC 113

Also briefed to defend proceedings by ASIC seeking that Macks be struck off as a liquidator and prevented from reapplying as a liquidator for 10 years. Ultimately, Macks was suspended as a liquidator for only three years.

• Australian Securities and Investments Commission v Macks [2018] SASC 132
• Australian Securities and Investment Commission v Macks (No 2) [2019] SASC 17; (2019) 133 SASR 251
• Australian Securities and Investments Commission (ASIC) v Macks (No 3) [2019] SASC 104
• Australian Securities and Investments Commission (ASIC) v Macks (No 4) [2020] SASC 209
• Australian Securities and Investments Commission (ASIC) v Macks (No 5) [2021] SASC 12

• Solar Shop Pty Ltd (in Liquidation), 2015 - 2018

Briefed for private equity nominee directors of Solar Shop Pty Ltd (in Liquidation), formerly Australia’s largest retailer of solar power systems. Appearing for the directors in Part 5.9 examinations and subsequently in defending proceedings brought by liquidators in respect of alleged breaches of Part 2J.1 and 2J.2 of the Corporations Act 2001 in respect of share transactions and Action SAD 278 of 2017, in which it was alleged the directors had failed to prevent the company incurring debts when insolvent contrary to s 588G of the Corporations Act 2001. The proceedings resolved, following two mediations before a Federal Court Registrar: Solar Shop Australia Pty Ltd (Receivers & Managers Appointed) (in liq) v Steele, in the matter of Solar Shop Australia Pty Ltd (Receivers & Managers Appointed) [2017] FCA 1219

• NewSat Limited (Receivers & Managers Appointed), 2016 - 2019

Briefed for the Receivers & Managers of NewSat Limited, an ASX listed public company that was to be Australia’s first integrated satellite provider, in conducting Part 5.9 examinations and subsequently in preparation and prosecution of Federal Court Action No. VID 51 of 2017, in which claims for compensation were made against the former Chair and Chief Executive Officer of the company by reason of alleged breaches of their directors’ duties. The proceedings settled after one week of trial before Moshinsky J in March 2019.

• Orient Power Holdings Ltd (in Liq) 2017

Briefed for the liquidators of Orient Power Holdings Ltd (in Liq) for the 12-week trial in the High Court in Hong Kong Action HCCL 14/2014, against Ernst & Young in respect of alleged breaches of their contractual, statutory and tortious duties as auditors.  Action settled day before commencement of trial.

• Gunns Limited (in Liquidation) (Receivers & Managers appointed) 2015 - 2019

• Acting on behalf of the liquidators of Gunns Ltd (in liquidation), a timber producer with interests in the management of timber and vineyard managed investment schemes and the development of a bleached paper pulp mill, in examinations of auditors, directors, creditors and various advisers to Gunns (Supreme Court of Victoria)

• Counsel for the liquidators in 72 preference actions in three registries of the Federal Court of Australia and one in the Supreme Court of Victoria, appearing at the trial of preliminary issues of insolvency and extensions of time under Section 588FF(3): Bryant (Liquidator) v LV Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (In Liq) (Receivers and Managers Appointed) [2018] FCA 238

• Counsel for the liquidators in proceedings in the Supreme Court of Tasmania (Action No. 1355 of 2015 and 2233 of 2016) against KPMG, the former auditors of the Gunns Group of Companies, and the former directors, respectively (settled successfully at mediation).

Ponzi Schemes

Acting for liquidators in relation to the investigation of Ponzi Schemes:

• Mercorella (losses $100 million)
• Adelaide Lending Centre (losses $60 million)
• Reseau International Trading (losses $100 million)

Other matters

• Acting for Elders Forestry Ltd – 2009 – 2010 (formerly Integrated Tree Cropping Ltd) in proceedings arising out of a shareholder’s agreement with Timber Corp in respect of the Albany Woodchip terminal:

• ITC Ltd v Timbercorp Ltd (In Liq) (2009) 76 ACSR 467
• Elders Forestry v BOSI Security Services Ltd (2010) 80 ACSR 122
• Elders Forestry v BOSI Security Services Ltd (No 2) (2010) 271 LSJS 100; [2010] SASC 226

• Acting for ABB Ltd in relation to:

• A claim against Grain Pool Pty Ltd arising out of their joint marketing agreement for international sales of grain (successfully settled at mediation before Mr Ian Callinan QC).
• Defending a claim by a grower partnership in respect of grain futures contracts and prosecuting counter claims in to enforce certain of them (indemnity costs of trial ordered in ABB’s favour).
• Rooney v ABB Grain Ltd [2010] FCA 1392
• Rooney v ABB Grain Ltd (No 2) [2011] FCA 231

• Acting for Straits Exploration Pty Ltd and Quasar Resources Pty Ltd in judicial review proceedings: Starkey v State of South Australia (2011) 111 SASR 537

• Acting for Blue Energy Ltd and Icon Energy Ltd in respect of disputes in the Federal Court arising out of Farm in Agreements
  
  
• Acting for Ausbulk Ltd in dispute arising out of negotiation of consent orders in the context of failed construction contract:
  
  
• Ewing International Limited Partnership v Ausbulk Ltd [2009] SASC 317
• Ewing International LP v Ausbulk Ltd (No 2) (2009) 267 LSJS 107; [2009] SASC 381
• Ewing International LP v Ausbulk Ltd [2010] SASC 142
  
  
• Numerous complex estate and trust disputes in substantial family groups
  
  
• Numerous claims arising out of rail accidents
  
  
• 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 successfully 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
• Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2008] VSCA 96
  
  
• Commercial leasing disputes, including acting for Metcash Limited, Coles Myer Limited and Western Mining Corporation Pty Ltd.
  
  
• Acting for a designer/manufacturer in a claim arising out of allegedly defective wine cask taps – claim successfully settled at mediation:
  
  
• Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd & Anor (2004) 237 LSJS 350
• Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd & Anor (2007) 99 SASR 178
  
  
• 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
  
  
• Shareholder disputes:
• Incitec Ltd
• 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
• Flinders Ports
• Elders Limited / AIRR Holdings Ltd
  
  
• Corporate Control disputes:
• Flinders Diamonds Ltd/Tiger International Resources
• Toll Holdings Limited/Patrick Corporation Ltd
  
  
• Instructed by ASIC in the prosecution 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)
  
  
• Proceedings in relation to the proper construction of a technology licence and alleged damages for breach: Rocla Pty Ltd v Plastream Pipe Technologies Pty Ltd & Anor [2011] SASC 70
  
  
• Proceedings arising out of contract for sale of land – allegations of uncertainty
• Masonic Homes Ltd v Oppedisano & Platinum Property Retirement Pty Ltd [2016] SASC 196
• Masonic Homes Ltd v Oppedisano & Platinum Property Retirement Pty Ltd (No 2) [2017] SASC 50