Coming hot after our story about the lawyer warned by a judge to consider his potentially conflicted position very carefully comes a decision out of the NSW Supreme Court which shows how liquidators using the same lawyer who acts for creditors or the liquidator’s funder can quell conflict concerns.
In this case Chifley Advisory principal Gavin Moss had to defend himself from allegations of multiple conflict-related breaches of duty by Ian Dresner, the director of churrasco operator Fogo Brazilia Holdings Pty Ltd.
Reckless disregard for the truth, knowingly misleading the court, failures of independence and impartiality; breach of duty, you name it. Supposedly Moss did what he oughtn’t or didn’t do what he ought.
For a man who appears to have been less than concerned with adequate record keeping, Dresner was meticulous in his cataloguing of Moss’s alleged misdeeds.
The queen bee in Dresner’s bonnet however was Moss’s retention of Levitt Robinson’s Stewart Levitt to act for him to conduct public examinations of Dresner when Levitt was also acting for some of the Fogo franchisee creditors pursuing claims against Dresner and fellow Fogo director Hilton Seskin.
Dresner commenced the proceedings to remove Moss in June 2020 having declined Moss’s offer to convene a meeting at which he would put to creditors a resolution to replace him.
But as is revealed by NSW Supreme Court judge Kate Williams In the matter of Fogo Brazilia Holdings Pty Ltd (in liq)  NSWSC 556 Dresner’s attempts to portray Moss as conflicted failed abysmally.
One of the reasons – among a great many in this lengthy judgment – was that Moss engaged separate lawyers to advise him during the conduct of the public examinations.
Levitt Robinson might have been instructing counsel undertaking the examinations but Moss had Piper Alderman’s Jonathan Hidayat or one of his colleagues sitting in each day to ensure that that conduct remained for a proper purpose.