iNO’s 2019 Year in Review

January:

iNO’s 2019 coverage kicked off with a story related to the topic that had dominated our headlines in December 2018 – namely the decision by Jirsch Sutherland to terminate the employment of partner Amanda Young days before Christmas.

In the near term aftermath Young’s brother and a former managing partner of Jirsch Sutherland Sule Arnautovic resigned as liquidator of St Gregory’s Armenian School Inc, an incorporated association with a long history of dispute between directors and Arnautovic and before him, Jirsch founder Rod Sutherland.

In Jirsch Partner Relinquishes Job After Sister Sacked we reported on orders made by Justice Stephen Robb that Grant Thornton’s John McInerney and Philip Campbell-Wilson be appointed joint official liquidators of St Gregory’s Armenian School Inc (In Liquidation).

A spokeswoman for Jirsch Sutherland told INO that the former managing partner of Jirsch’s Sydney office decided to relinquish the role ” … with the support of ASIC and the Department of Fair Trading, on the basis that a potential perception of a conflict of interest may arise due to the familial relationship between Mr Arnautovic and Ms Young”.

Prior to Arnautovic’s decision to relinquish the appointment Jirsch managing partner Bradd Morelli had confirmed that in the wake of Young’s termination, nobody else at Jirsch was under suspicion.

 “In each case, these transfers took place without the knowledge or approval of any Jirsch Sutherland partner,” Morelli said.

“There is no allegation or suspicion of any wrong doing by any current Jirsch Sutherland member of staff or Partner,” he said. 

February:

February comes from the latin word februum, meaning purification, and February 2019 commenced with AFSA purifying its ranks of bankruptcy trustees.

In Fraudster Stripped Of Registration iNO reported that AFSA had issued a show cause notice to David Leigh, the ex-PPB partner who in late 2018 pleaded guilty to relieving the liquidation account of a company called Neolido Holdings of 800,000 burdensome dollars.

Resigned to his fate Leigh advised AFSA that he would not respond to the show cause notice and a three member disciplinary committee convened for the purpose found that the self-confessed fraudster could not possibly satisfy the fit and proper person test and cancelled his registration accordingly.

iNO also reported In February on a notable example of the sometimes controversial acceptance of appointments as voluntary administrator after a winding up application has been commenced.

In 11th Hour VA An “Abuse Of Process”: Court we recounted the tale of how Lowe Lippman partners Gideon Rathner and Matthew Sweeney accepted an appointment as VAs of an insolvent linen supplier on February 5, 2019. 

A hearing of a winding up application brought by a creditor of the insolvent entity, which had already been adjourned once, was scheduled to be heard on February 6. That meant the newly appointed VAs had to apply to adjourn the hearing of the winding up application the day after their appointment. And tt was not to be.

February 2019 was also notable for featuring the biggest fee haircut story of the year.

In Court Wallops Liquidators Over $5.8 Million In Fees iNO reported on the decision of Federal Court judge Tony Besanko in respect of a challenge to $5.8 million in fees generated by Adelaide-based IPs John Sheahan and Ian Locke.

While the amount the pair would be ordered to repay had to wait till June, the judge did signal that the percentage of reduction would be large, given his conclusions about Sheahan and Locke’s rates.

 “I have taken all these matters into account and I have reached the conclusion that the plaintiffs’ hourly charges are excessive,” Justice Besanko said.

March:

The official commencement of Autumn coincided with the first significant disciplinary penalty meted out by ARITA in 2019. 

As iNO reported in DVT Pair Fined $10,000, Suelen McCallum and Riad Tayeh incurred a hefty penalty after ARITA’s professional conduct committee deemed they were a little too close to a company prior to taking an appointment.

In Referrer Role Confers No Immunity we reported on Cor Cordis partner Mark Hutchins’ work on Cap Coast Telecoms Pty Ltd, which led ultimately to an ASIC investigation, a referral to the Director of Public Prosecutions and charges being laid against pre-insolvency advisor Steve Marks of SMEs R Us. 

March was also the month the biggest corporate activity story since PwC’s 2018 takeover of PPB, as we reported in KPMG Confirms Ferrier Hodgson Acquisition and it was the month that a long time thorn in the side of Hall Chadwick’s Sydney partnership had what may yet to turn out to be a significant legal win, as outlined in Ex-Receivers Fail To Have Deceit Claim Dismissed.

April:

A well known and respected Melbourne-based IP felt the chill of judicial discontent in April 2019, as was chronicled in Worrells’ Glavas Belted Over Proofs Of Debt  

The always vexed issue of accepting appointments after extensive pre-appointment involvement – think KordaMentha and Ten Network – was meanwhile catalogued in Deloitte’s AxsessToday Pre-Appointment DIRRI Dance. Nothing to see hear!

iNO’s sources also showed their worth in April, after earlier tips published about the departure from the profession of liquidator and trustee Peter Dinoris were confirmed by AFSA and duly reported on in Bankruptcy Trustee’s Axing Imminent. 

May:

While the ongoing tribulations of liquidator David Iannuzzi had occupied iNO since 2017, it was an occurrence in May that signalled to us that the Veritas Advisory owner’s long battle with the Commissioner of Taxation might be approaching a conclusion.

In Receiver Seeks Discharge Over “Other Issues” iNO told how a lawyer acting for Iannuzzi had to explain to a judge why his client wanted to retire from his position as a joint receiver of JSMOT Pty Ltd. 

The lawyer’s explanation that Iannuzzi need to resign due to work flow and “other issues” satisfied the judge who may or may not have been aware that Iannuzzi was only a couple of months away from consenting to orders that would ultimately see him rubbed out for a decade.

In May we also put the spotlight on the insolvency regulator following its failed bid for a judicial inquiry into ex-liquidator Andrew Wily and his former colleague and current liquidator David Hurst.

The reason for the scrutiny came from you dear readers, who, having absorbed the news that ASIC had been ordered to pay Hurst and Wily costs, wanted to know if the cost to ASIC would ultimately be passed on to them via the industry funding model.

Yes was the answer, as detailed in Liquidators To Pay For ASIC’s Litigation Losses.

May was also the month iNO broke the news that Aris Zarifiou and the ATO had parted ways in our exclusive: ATO Inquisitor Defects To Private Sector

Another issue of interest involved the ongoing stoush between former partners Anthony Warner and Steve Kugel. iNO’s May coverage in Ownership Scrutinised As Ex-Partners Fight Over WIP detailed just one step in the long running saga, which Warner is now taking to the Court of Appeal.

June:

As Winter arrived IPs aplenty were under pressure from creditors emboldened by new laws granting them fresh powers to obtain information or replace appointees.

PKF South Australia chairman Paul Jorgenson discovered how far creditors are prepared to go in respect of his appointment to Unique Urban Built.

iNO reported on the initial stages of his eventual ousting in Jorgensen To Be Jettisoned As Hall Chadwick Muscles In and continued the coverage as the situation evolved via Worrells Enters Unique Urban Built Affray.

Rodgers Reidy’s Geoff Reidy meanwhile defied those seeking to unseat  him, as iNO reported in Reidy Repels Accusers But Denied Indemnity Vengeance  

Even the corporate regulator got into the act. In ASIC Goes Whole Hog, Forcing Ferriers Out Of GD Pork, iNO detailed how ASIC forced Ferrier Hodgson West Australia duo Martin Jones and Andrew Smith to relinquish their roles as voluntary administrators of GD Pork Pty Ltd on the basis that Ferriers had its teeth into the firm as investigating accountants before Jones and Smith became VAs.

The ongoing Cedenco fee saga was brought to a conclusion in June and iNO reported on it in Liquidators Ordered To Repay Almost $2 Million while we canvassed some of the inevitable conflict issues arising form the KPMG takeover of Ferrier Hodgson in SPLs For Forge Group Exposes KPMG/Ferriers Conflict.

Also starring in the theme of the month were Jirsch Sutherland’s Trent Devine and Bradd Morelli, who spent some of June fighting to retain their appointments as liquidators of  FW Projects against the wishes of an irate creditor, as iNO revealed in Creditor Opts For Replacement Over SPL.

July:

As the new financial year kicked in ASIC published a case study in its 12th Corporate Insolvency Update about an appointee who had previously worked with a director of a company over which the appointee had accepted an appointment.

In Wedding 5 Years Earlier Too Soon For ASIC we learned that: “… about five years before the external administration appointment, the director of the company attended the RL’s wedding, and about 10 years before the external administration appointment, the RL and the director worked together for several years at two insolvency firms,” ASIC said.

The RL and his joint appointee were subsequently replaced by creditors at a reconvened first meeting of creditors attended by ASIC, demonstrating that issues of appointee independence and the ‘double might’ test are as flammable as ever.

Towards the middle of the month was also when now struck off liquidator David Iannuzzi was due to pear for three days of public examination in respect of a wide ranging inquiry into his conduct brought by the Commissioner of Taxation. 

As iNO reported in Liquidator Consents But Will 10 Years Satisfy Judge?   when the day came, the court heard that the CoT and Iannuzzi had agreed consent orders.

While those orders would saw Iannuzzi voluntarily accept a 10 year ban from holding a liquidator’s registration they also ensured there would be probing questions put to him in open court. 

Finally in How Hard Is It To Replace Liquidators? This Hard. Jirsch Sutherland partners Trent Devine and Bradd Morelli discovered that new laws giving creditors greater power to challenge incumbent appointees were not going to be rubber stamped by judges.

August:

Intermingling of funds from investors based in Australia and New Zealand led to an unusual request by KPMG’s Morgan Kelly and Phil Quinlan that the High Court of New Zealand assist them in dealing with a “deficient mixed fund”.

In Halifax And The Maddening Complexity Of Commingling iNO reported on the court’s determination that while the application in respect of the High Court of New Zealand was premature, Kelly and Quinlan could reapply in due course.

The month of August also saw movement in respect of KordaMentha’s curious resistance to an examination summons, issued by a Registrar of the NSW Supreme Court in May. 

In Kordas Resisting Shareholder Move On Arrium BossiNO reported on the proceedings, which pit Arrium shareholders seeking to examine former Arrium director Colin Galbraith against Arrium’s deed administrators, who for reasons they’ve declined are steadfastly opposed to Galbraith being examined. 

KordaMentha’s challenge to the examination summons issued by the Registrar failed and the deed administrators have since appealed.   

Also creating some interest in August was the move to appoint a special purpose liquidator to Walton Constructions to pursue NAB after the general-purpose liquidators entered into a confidential deed with NAB that has the effect of ensuring the GPLs do not pursue any claims against the bank, assuming any such claims have been identified. 

In SPL Seeks Funder To Tackle NAB Over Mawson iNO reported that  Menzies Advisory’s Michael Caspaney had accepted the appointment as SPL but was in search of a funder.

September:

Spring sprang and so did the ATO, right onto Jirsch Sutherland partners Sule Arnautovic and Trent Devine after they had accepted appointments as VAs of companies connected to former Jirsch partner Sam Henderson. 

In ATO Replaces VAs As IP Succumbs To Sequestration iNO reported how the ATO expressed surprise that Jirsch had accepted the appointments and how that surprise translated quickly into Arnautovic and Devine abandoning efforts to hold onto the appointments.

September was also the month iNO reported on a $20 million settlement paid by developer Merhis Group to settle claims being pursued by Helm Advisory’s Stephen Hathway and Phil Hosking. 

In Liquidators Win $20m Settlement From Merhis Corp iNO revealed that the settlement would discharge outstanding GST and income tax liabilities the companies owe to their largest unsecured creditor, the Australian Tax Office (ATO).

In September iNO also chronicled in Cor Cordis Pair To Pay $10k For Bungled Deregistration an example of accidental deregistration while the challenges faced by appointees who have agreed to cap fees and then charged way above that cap were exposed in Orders Ain’t Orders When Receivers’ Fees Quadruple.

October:

In October iNO reported on the appointment statistics measuring where each insolvency firm stands in comparison with its rivals, which we published in Insolvency Rankings FY 2018/19.

There was good news for Vincents Nick Combis in October which iNO reported in Liquidator Succeeds In $150k Adverse Costs Appeal.

There were also interesting development sin the case of Amanda Young, the former Jirsch Sutherland partner who voluntarily surrendered her liquidator’s registration after Jirsch Sutherland terminated her employment at in December 2018.

In Sacked Liquidator Tells CAANZ Money Was Hers iNO revealed that Young had told Disciplinary Tribunal of Chartered Accountants Australia and New Zealand (CAANZ) that: “ the monies withdrawn by her from the liquidation accounts the subject of ASIC’s investigation were owed to her”.

FTI’s Joanne Dunn was also reported on Intelara Imbroglio Reinforces Rule: Know Thy Referrer after a judgment handed down in the Federal Court and iNO gave readers its two cents worth in respect of the latest insolvency inquiry in Insolvency Inquiry Overlooking The Obvious.

October also fgeaurters some important legal developments, including the extent to which DoCAs can be seen to extinguish claims, as iNO reported in Fair Work Ombudsman Redefines DoCA Limits.

November:

Still on matters legal and in early November iNO reported via Mass Request A Reminder That Amerind Ain’t Over on the mass mail exercise conducted by the FEG Recovery Unit seeking information from registered liquidators, an initiative spurred by the High Court’s ruling on the status of trust assets.

Meanwhile in Worrells Partner Allegedly Facilitated Phoenix iNO broke the news that ASIC had applied for a judicial review into the independence of Worrells partner Jason Bettles. Editor’s Note: On Friday, August 18, 2023 Justice Brigitte Markovic of the Federal Court of Australia dismissed the entirety of ASIC’s case against liquidator Jason Bettles and ordered the regulator to pay Bettles’ costs.

We also reported in Delay Sees Trustee Ordered To Repay $180k on the penalties a trustee in bankruptcy can incur if a court decides there have been unreasonable levels of delay and on the 12 month semi-ban imposed on liquidator Mitchell Ball in Contrition And Circumstances Save Ball’s Bacon.

December:

This, the final month of the year and a short month for iNO, was nevertheless packed with incidents and occurrences well worth chronicling.

In Liquidator Replaced After Admitting Related Party Debt we again canvassed how courts are treating applications to remove incumbents.

That story then led to another instalment in the inadvertent deregistration series, as told in Another Inadvertent Deregistration Via 5603.

Issues around practitioner discipline arose again in the surprising revelations – detailed in Trustee Referred To Schedule 2 Committee – Again – that Veritas Advisory’s trustee Louise Thomson – the first person to be referred to an AFSA panel and the first person to be cleared of any wrongdoing by such a panel – was heading back there.

December also saw the delivery by the NSW Supreme Court of Appeal of a long awaited judgment in respect of the use by an appointee of the casting vote.

In Gladman A Sad Man After Court Orders His Ousting the Court of Appeal overturned an earlier judgment refusing a creditor’s application that the use of the casting vote by Gladman should be overturned.

That’s it then from iNO for 2019. We wish all our readers the happiest of Christmases and look forward to resuming publication after a well earned break on Wednesday, February 5, 2020. Support INO’s continued chronicling of the insolvency sector.