Michael West Sydney Morning Herald October 29, 2012
TANYA Hamilton-Smith owed $28,000 to her boyfriend's company when it went belly-up.
The liquidator to this Adelaide retailer then spent half a million dollars chasing the debt. Don't rub your eyes: that's correct; they forked out nearly $500,000 to pursue a debt of just $28,000.
An abuse-of-process case is now afoot from the company's founder, John Viscariello. That makes lawsuit number nine.
In an interim judgment a few weeks ago, South Australia's Chief Justice Chris Kourakis found the liquidator, PPB, and its lawyers Minter Ellison, enjoyed a ''loosely defined fee-sharing arrangement''. They carved this baby up good and proper. One decade of litigation, $1 million in fees, one doughnut for creditors.
Welcome to the Dead Zone, the land of liquidations, administrations and receiverships, where bounty-hunters roam the apocalyptic landscape preying on the dying and the wounded.
And the big banks are there, hulking leviathans lazing in the distance with intent, pulling strings, deciding who lives and who dies, who does the undertaking and who reaps the spoils.
Increasingly, the banks are running both ends of the insolvency spectrum, the administrations as well as the receiverships. The relationships between banks and liquidators are not disclosed, whether contractual or just purely commercial.
Those who get the lion's share of the work, lately PPB and KordaMentha, never claim against the banks. They never challenge the banks.
Take the case of SK Foods for mollycoddling. KordaMentha is the receiver, appointed by ANZ. The job is done. ANZ has been paid the $21 million it was owed from the estate, in full.
There are other creditors and shareholders to pay, people who don't churn out a $4 billion bottom-line profit each year, but who are still owed for their work.
The liquidator, Sheahan Lock, has asked KordaMentha to release the $18 million it still holds, and retire, but bizarrely KordaMentha has refused.
It has told the Supreme Court of Victoria that it has to hang on to the money just in case it gets sued. Actually, it's worse than that. It has to hang on to the money in case ANZ gets sued.
Towing the line with a bow, its solicitors, Ashurst, even swore an affidavit that it would cost $10.2 million to defend proceedings that it thought might be brought against its client. These are proceedings, mind you, which don't exist. The liquidator hasn't decided whether to bring them.
Undaunted, however, and as if aspiring to a ''Dawn of the Dead'' sequel to PPB's horror show with the Adelaide retailer John Viscariello, KordaMentha enlisted the service of a ''costs consultant'' to confirm Ashurst's $10.2 million estimate from the stratosphere.
Dawn of the Dead was fiction. But a ''costs consultant'' with a $10.2 million price on an imaginary lawsuit? You couldn't make this stuff up.
So a directions hearing is set down for next month. More court costs on the taxpayers' account, less return for smaller creditors.
Year in, year out, successive owners had struggled to make a dollar out of Ansett Airlines. Once Ansett was dead though, it put KordaMentha on the map, and raked in $100 million in income.
When Gunns went under recently, the usual suspects scored the gig, KordaMentha as receivers and PPB as administrators.
In the demise of plantation company Willmott Forests, the Commonwealth Bank had funded 80 per cent of the growers in the various Willmott schemes.
Few made money out of Willmott, save the promoters and the professional advisers. And when it bit the dust, the banks appointed KordaMentha and the directors appointed PPB. Fees cradle to grave.
Commbank went to the creditors' meeting and didn't like the fact that Willmott had appointed its own administrator. So the bank objected and used its sway - at the creditors' meeting you can use the full amount of your debt rather than the value of your security to vote - and went for PPB.
Next thing you know, Arnold Bloch Liebler, supposedly independently, became of the view the banks ought to rank before growers in the sale of Willmott's land.
How many major claims have been brought by major liquidators against major banks? It doesn't happen, say industry insiders.
Opes Prime was a lay down misere. There was a clear-cut case against ANZ for acting as a shadow director, among other things, but the liquidator didn't pursue it.
In Bankwest's fight against property developer Luke Saraceni, the bank appointed KordaMentha as receivers. Then KordaMentha faithfully kicked up a huge stink at Saraceni's decision to appoint Bryan Hughes as administrator.
Presumably Bryan Hughes was too independent for the bank.
Why do the banks carry on interfering in the selection of liquidators? They already have their interests attended to by receivers after all. It is simply that they don't want to be sued. And they are unlikely to be sued by a liquidator who is already on the gravy train.
There was recently one exception to this unspoken spoken rule. In the ABC Learning liquidation, Ferrier Hodgson has intrepidly backed a suit against CBA to try to knock out a charge granted to the bank, orally, and blatantly, a few months before Eddy Groves' child-care company collapsed.
Ferrier hasn't enjoyed quite the escalating case load afforded PPB or KordaMentha in recent times and must have been tempted to duck for cover and not pursue the ABC claim at all, although the bank was somewhat conflicted as its asset manager Colonial was the largest ABC shareholder.
Save on these rare occasions, though, the hard questions go unasked, the hard deeds never get done, the prospective claims are left to wilt and the merry-go-round of KordaMentha as receiver and PPB as liquidator - and visa-versa - proceeds apace.