Insolvency, Litigation and Dispute Resolution

ASIC takes strong stance to “litigate first” following the Financial Services Royal Commission

29 January, 2019

The Federal Court of Australia recently struck off an insolvency practitioner from the register of liquidators and restrained him for ten years for acting as an insolvency practitioner. The case concerns the conduct of David Iannuzi, who the Court found had “repeatedly fell short of the standards that would ordinarily be expected of him as a competent registered liquidator”. The judgment sets out in detail the conduct that the Court found to be unsatisfactory and serves as a reminder of the standards expected of liquidators.


Mr Iannuzi became a registered liquidator in October 2012, and was the sole director of Veritas Advisory. Much of his work was referred to him by an accounting firm, Banq Accountants. The Commissioner of Taxation commenced proceedings against Mr Iannuzi in relation to multiple administrations and liquidations, much of which were referred to him by Banq, in which the Commonwealth was a creditor of the company.

The proceedings were brought pursuant to section 536 of the Corporations Act 2001 (Cth) (which is now reflected in section 90-10 of the Insolvency Practice Schedule), which allows the court to perform an inquiry into the external administration of a company . In BL & GY International Co Ltd v Hypec Electronics Pty Ltd [2010] NSWSC 959, Barrett J identified three stages in these types of proceedings:

  1. Deciding whether an inquiry into the liquidator’s conduct is warranted;
  2. Performing an adversarial inquiry leading to a judgment about the liquidator’s conduct; and
  3. Determining what orders to make, if any, about the liquidator’s conduct.

In the present case, Stewart J of the Federal Court of Australia had previously determined that an inquiry was warranted (stage 1), and set the matter down for hearing (stage 2). Just prior to the hearing, the Mr Iannuzi made a number of admissions which resulted in consent orders being provided to his Honour.

Despite this, Stewart J stated that the Court will not merely proceed on consent orders and must be satisfied that there is a proper basis for them (stage 3). His Honour considered the conduct of Mr Iannuzi and ultimately made the orders sought by consent, removing Mr Iannuzi from the register and disqualifying him for ten years, and a costs order in favour of the Commissioner of Taxation.

The conduct in question

The Court was critical of Mr Iannuzi’s conduct in relation to twenty-three external administrations. This conduct included:

  • Issuing reports to creditors late, and missing or issuing defective declarations of independence, relevant relationships and indemnities (DIRRI).
  • Issuing notices for meetings of creditors in the wrong form and failing to provide the requisite 10 business days’ notice.
  • Failing to make enquiries expected of a reasonable liquidator, including into bank accounts and property held by the company such that would reasonably lead to enquiries into unfair preferences, including some investigations into related entities to Banq.
  • Failing to take steps to obtain the full books and records of various companies in a timely manner.
  • Failing to identify or investigate phoenixing activity.
  • Failing to investigate suspicious proofs of debt (e.g. proofs of debt for round figures to related entities).
  • Failing to investigate potential de facto directors.
  • Failing to be candid in disclosures to creditors.

Summarising this conduct, Stewart J held that:

“It is fair to say that Mr Iannuzzi made little or no effort other than to go through a set of standard procedures and without paying attention to whether his enquiries were bearing fruit or to whether further or different enquiries were warranted. On many occasions he failed to make even the most basic enquiries about a company’s assets such as previous bank accounts or real property, or who its real directors were. His supervision of his staff on whom he relied to do much of the work was patently inadequate.”

The importance of insight

The Court also considered Mr Iannuzi’s insight into his conduct. The Court noted that the Commissioner of Taxation commenced proceedings in August 2007, with voluminous documents and affidavits supporting their claim. The Court was critical of Mr Iannuzi’s attitude, which “over a period of nearly two years, was to deny what was put against him and to raise obstacles to the Commissioner’s case”. The Court also noted that Mr Iannuzi filed pleadings and served affidavits where he denied conduct which he subsequently admitted to. The Court was particularly critical of the misuse of its resources, stating:

“It goes without saying that Mr Iannuzzi’s conduct in defending the matter until very near the end has taken up a considerable amount of time and effort of the Court which is to the detriment of other litigants, and it has put the Commissioner to considerable effort and costs not all of which will be made good by the party/party costs order to which he has consented.”

The Court found that the delay in Mr Iannuzi’s acknowledgement of wrongdoing was relevant on the question of what orders should be made. In finding that the consent orders proposed by the parties were appropriate, the Court stated that:

“A significant factor in my assessment that the agreed orders are within a range of appropriate orders is the lateness of Mr Iannuzzi’s insight into his wrongful conduct. As indicated above, the approach that he took to this proceeding until the eleventh hour caused the Court, other litigants in other matters before the Court and the Commissioner considerable inconvenience and/or expense. Moreover, it is an adverse reflection on Mr Iannuzzi’s character, and thus on whether he is a fit and proper person to be a liquidator, that he has come to the insight that he now has at such a late stage and only when faced with a potentially significantly more serious case including allegations of being party to a proposed scheme to defeat or hinder creditors. It also shows the possible precariousness of that insight such that it is necessary to protect the public from Mr Iannuzzi acting as a liquidator for a long period of time.”

What does this all mean for liquidators?

Mr Iannuzzi’s case serves as a reminder for liquidators as to the types of conduct that will considered to be unsatisfactory. In his judgment, Stewart J provided the following useful observations on the role and duties of liquidators:

The liquidator’s essential functions are to identify, take possession of and realise the company’s assets, to investigate and determine the claims against the company and to apply the assets to the satisfaction of those claims in accordance with the statutory scheme of priority… A court-appointed liquidator is an officer of the court, through whom the court itself notionally conducts compulsory liquidations… This has particular implications for the standard of conduct expected of a liquidator. The liquidator is entrusted with the reputation of the court for impartial and proper dispatch of their duties… The position of liquidator is a repository of public trust; the public is entitled to trust a liquidator to perform their functions to a high standard and with scrupulous attention to obligations of candour, honesty and integrity.

When a liquidator falls short of the standards expected of them, the public’s trust in the office of liquidator is eroded. That in turn has a corrosive effect on the administration of the body of insolvency law, and consequently on the administration of justice.

A liquidator’s duties include both general law and statutory duties to act with reasonable care and diligence, good faith, proper use of their position, proper use of any information obtained and not to act recklessly or dishonestly. Liquidators also have a fiduciary duty to act with complete impartiality between creditors and not to allow the liquidator’s personal interests to conflict with the liquidator’s duties.

Mr Iannuzzi’s conduct set out in Stewart J’s judgment resulted in a failure to satisfy these duties, and lead to his removal and disqualification.

McCabes has extensive experience in advising both liquidators and creditors in relation to the duties of liquidators and disputes regarding external administrations.

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Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
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Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

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