South Australian liquidator Peter Macks has been through the wringer in recent years, a painful squeeze through fate’s indifferent narrows that was mostly self-propelled.
“The obligation to maintain adequate and appropriate insurance in s 25-1 of the IPSC is a present obligation relating to working as a registered liquidator and consequently does not apply to a suspended liquidator not working as a registered liquidator.” Judge Laura Stein.
He’s had his registration as a liquidator suspended, been upended by ill health, grappled with the regulator’s byzantine precepts in respect of insurance, seen his registration lapse and had further attempts to renew it refused.
In other words, the 67 year old from Port Augusta was due a break. And last month Supreme Court of South Australia judge Laura Stein cut him one.
In Australian Securities and Investments Commission V Macks [2025] SASC 4 her honour granted Macks an extension of time to enable him to lodge a further application for renewal of his registration, rejecting ASIC’s arguments opposing the extension which focussed on Macks’ decision not to initially disclose to the regulator that he didn’t have professional indemnity insurance in place during the period of his three year suspension, which commenced in February, 2021.
A year earlier, Macks had applied to ASIC for renewal of his registration for a period of three years and that application had been granted.
Inevitably this meant that his registration would fall due for renewal in March, 2023, approximately a year before the period of suspension expired. But the problem that’s been bedevilling Macks commenced well before that.
At approximately the same time the suspension was imposed in February, 2021 Macks’ existing insurances were due to expire.
As the judge explains, he quickly discovered that renewing them whilst suspended would be all but impossible.
“Mr Macks’ broker informed Mr Macks that they could not locate any insurer willing to provide cover to him for the period of his suspension irrespective of whether it related to future or historical claims concerning his conduct as a liquidator,” the judge said.
“Mr Macks was informed that his existing insurer, Liberty, would only extend cover to Mr Macks’ firm and its employees if an endorsement or exclusion in respect of Mr Macks was inserted into the policy.
“In early March 2021, another broker informed Mr Macks that of the four insurers offering insurance policies to registered liquidators which were compliant with the requirements of RG258, one was Liberty and the remaining three would not provide cover to Mr Macks while suspended and/or were not willing to write new business,” the judge said.
The issue in respect of an extension of time emerged in early 2023 when Macks, in the early stage of recovery from a heart attack, sought to renew his registration via the ASIC portal on February 17 ahead of its expiry the following month.
Because his insurance arrangements were in the regulator’s view inadequate ASIC refused and in a letter to Macks declared that he had been required during his period of suspension to disclose that he did not have professional indemnity insurance in place, that he had not done so and that if he had ASIC would have considered cancelling his registration or issuing a show cause notice.
“ASIC relied upon that non-disclosure as a reason why the Court ought not exercise any discretion in Mr Macks’ favour,” the judge said. But she was unconvinced.
“The obligation to maintain adequate and appropriate insurance in s 25-1 of the IPSC is a present obligation relating to working as a registered liquidator and consequently does not apply to a suspended liquidator not working as a registered liquidator,” she said.
“The insurance obligation on a suspended liquidator is an obligation to hold run off cover which is imposed only as a condition of the liquidator’s registration by r 20-5(4) of the Insolvency Practice Rules (Corporations) 2016 (Cth).”
As a consequence of her reasoning Macks was granted the extension. iNO sought comment from ASIC in respect of the possibility of an appeal but no reply was forthcoming prior to publication.
Further reading:
Macks cops 3 year suspension for dishonesty
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