[2024] SASC 125

Applicant: MICHAEL OSCAR BASEDOW IN HIS CAPACITY AS LIQUIDATOR OF BERNSTEEN PTY LTD AND NEWMORE PTY LTD Counsel: MR P LEECH - Solicitor: COWELL CLARKE Respondent: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION No Attendance N/A: JOHN VISCARIELLO In Person Hearing Date/s: 15/10/2024 File No/s: CIV-23-013549 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. IN THE MATTER OF BERNSTEEN PTY LTD (IN LIQUIDATION) AND NEWMORE PTY LTD (IN LIQUIDATION [2024] SASC 125 Judgment of the Honourable Justice McIntyre 29 October 2024 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - NON-PARTY INTERVENTION CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - PROCEEDINGS BY OR AGAINST THE COMPANY - STAY OF PROCEEDINGS PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY Mr Viscariello seeks to be joined as a respondent or interested party or alternatively to be heard in the liquidation proceedings of Bernsteen Pty Ltd and Newmore Pty Ltd. Mr Viscariello further seeks a stay of orders made on 16 July 2024 by this Court, which will lead to deregistration of Bernsteen Pty Ltd and Newmore Pty Ltd on 31 October 2024. The applicant contends that the impugned orders were made correctly and that there is no proper basis for Mr Viscariello to be joined or otherwise heard in these proceedings. The applicant further contends that rule 22.1 of the Uniform Civil Rules 2020 is inconsistent with the Corporations Rules 2003 and that the application must be dismissed to the extent that it relies upon that rule. Held: 1. Rule 22.1 of the Uniform Civil Rules 2020 is inconsistent with the Corporations Rules 2003. Mr Viscariello’s application must be assessed under Corporations Rule 2.13. -- 1 of 13 -- 2. Mr Viscariello has not established that his joinder as a respondent under Corporations Rule 2.13(3) is necessary for the proper resolution of the proceedings nor that his participation is essential to safeguard his legal rights. 3. Mr Viscariello has not established a proper basis upon which the Court should grant leave to be heard under rule 2.13(1) of the Corporations Rules. 4. There is no proper basis upon which to grant a stay of the orders made by this Court on 16 July 2024. Corporations Act 2001 (Cth) ss 480, 509, sch 2 s 90-15; Uniform Civil Rules 2020 (SA) rr 21.1(4), 22.1, 186.1; Corporations Rules 2003 (SA) rr 1.5, 2.13, 7.6.; Enforcement of Judgments Act 1991 (SA) s 17, referred to. Re Ballistic Australia Pty Ltd [2015] NSWSC 1448; Re GB Nathan & Co Pty Ltd (in liq) [1991] 24 NSWLR 674; Re Hundy (in his capacity as liquidator of 3 Property Group 13 Pty Ltd (in liq)) [2019] FCA 1440, considered. -- 2 of 13 -- IN THE MATTER OF BERNSTEEN PTY LTD (IN LIQUIDATION) AND NEWMORE PTY LTD (IN LIQUIDATION [2024] SASC 125 Civil: Application 1 McIntyre J: Mr Viscariello issued an interlocutory application seeking to be joined as respondent or as an interested party to these proceedings which were brought by the then liquidator of Bernsteen Pty Ltd Pty Ltd (in liquidation) (“Bernsteen Pty Ltd”) and Newmore Pty Ltd Pty Ltd (in liquidation) (“Newmore Pty Ltd”). Mr Viscariello submits that he is a secured creditor and argues that his involvement, to use a neutral term, is essential to address alleged procedural irregularities in the conduct of the liquidation, as well as to protect his proprietary interests. 2 Associated with this application, Mr Viscariello also sought a stay of orders made in these proceedings on 16 July 2024 for the deregistration of Bernsteen Pty Ltd and Newmore Pty Ltd, which is scheduled to occur on 31 October 2024. 3 For the reasons that follow, I dismiss Mr Viscariello’s application and I decline to grant a stay of orders. The Proceedings 4 In brief, Bernsteen Pty Ltd and Newmore Pty Ltd have been under external administration since December 2001. There has been litigation in relation to the former trading activities of the companies.1 The original liquidator was Peter Ivan Macks. By order of this Court made on 15 April 2015 Michael Oscar Basedow (“the applicant”) was appointed as the liquidator of the companies in place of Mr Macks. 5 These proceedings were commenced by the applicant seeking orders in the winding up of the companies under the Corporations Act 2001 (Cth) (“the Corporations Act). Initially the applicant sought directions as to certain payments made and to be made from the funds of each of the two companies under Item 90- 15 of the Insolvency Practice Schedule (Corporations) contained in Schedule 2 of the Corporations Act. Orders were made by Judge Dart (as he then was), authorising certain payments on 14 February 2024 (“the February 2024 orders”).2 Subsequently, the applicant filed an interlocutory application under s 480(d) of the Corporations Act seeking orders that he be released as liquidator of both companies and that the Australian Securities and Investment Commission (ASIC) deregister both companies.3 Those orders were made by Auxiliary Judge Flourentzou on 16 July 2024 (“the July 2024 orders”).4 Accordingly, the 1 Viscariello v Macks [2014] SASC 189; Viscariello v Macks (No 2) [2015] SASC 160 (“the Macks litigation”). 2 FDN 9; FDN 11. 3 FDN 14. 4 FDN 23; FDN 24. -- 3 of 13 -- [2024] SASC 125 McIntyre J 2 proceedings were effectively finalised and the applicant is no longer the liquidator of Bernsteen Pty Ltd and Newmore Pty Ltd. The deregistration is due to occur on 31 October 2024. Mr Viscariello’s applications 6 Initially, Mr Viscariello sought to be joined as an interested party as defined in r 21.1 (4) of the Uniform Civil Rules (“UCR”) by an application filed on 29 July 2024.5 In addition, he sought further orders staying all orders in this proceeding until further order and that the proceedings be reopened. 7 Mr Viscariello was given leave to file an amended interlocutory application. The amended application substantially amended the original interlocutory application. Mr Viscariello now seeks orders as to his joinder to the proceedings as follows: 6 1. That Mr John Viscariello (“Mr Viscariello”) be added as a Respondent in the herein proceedings as defined in r 1.5, and pursuant to r 2.13 (3) of the Corporation[s] Rules 2003 (SA) (“CR”) or in the alternative, as defined in r21.1 (3), and pursuant to rule 22.1 of the Uniform Civil Rules 2020 SA (“UCR”). 2. That in the alternative to the order sought in paragraph 1 above, that Mr Viscariello be joined as an ‘interested party’ in the herein proceeding as defined in r21.1 (4), and pursuant to rule 22.1 UCR. 3. That in the alternative to the orders sought in paragraphs 1 or 2 above, that Mr Viscariello have permission to be heard in the herein proceeding pursuant to r 2.13(1) CR. 8 In addition, by way of interlocutory relief, Mr Viscariello sought that the July 2024 orders, be “set aside or revoked ab initio” or in the alternative that they be stayed until further order. He further sought orders for delivery of all of the financial records of Newmore Pty Ltd to him. 9 Mr Viscariello seeks final orders as follows:7 7. That the herein proceeding be recalled and reopened pursuant to r186.1 of the UCR, the Courts inherent jurisdiction or any other enabling powers of this Honourable Court. 8. That Orders 1 to 5 of the Orders made by His Honour Judge Dart on 14 February 2024 be recalled, set aside or revoked ab initio. 9. That Orders 1.1 and 2.1 of the Orders made by Her Honour Auxiliary Judge Flourentzou on 16 July 2024 be recalled, set aside or revoked ab initio. 5 FDN 25. 6 FDN 36. 7 Ibid. -- 4 of 13 -- [2024] SASC 125 McIntyre J 3 10. That the First Applicant repay to Bernsteen Pty Ltd Pty Ltd (In Liquidation) (“Bernsteen Pty Ltd”) all of the monies he paid out pursuant to Orders 2 and 3 of the Orders made by His Honour Judge Dart on 14 February 2024 plus interest. 11. That the Second Applicant repay to Newmore Pty Ltd Pty Ltd (In Liquidation) (“Newmore Pty Ltd”) all of the monies he paid out pursuant to Orders 4 and 5 of the Orders made by His Honour Judge Dart on 14 February 2024. 12. That there be an inquiry into the conduct of the First and Second Applicant concerning the subject matter of the herein proceeding pursuant to Items 90-10 of the CA Schedule 2 Insolvency Practice Schedule (Corporations) or s423 of the CA 13. That the First and Second Applicant pay the costs of an incidental to this Application on an indemnity basis from his own funds or on such other basis as the Court thinks fit. 14. Interest. 10 Whilst the matter was set down for argument relating to Mr Viscariello’s original application to be joined as an interested party, the argument proceeded on the basis of his amended application for joinder. The application for joinder was opposed by the applicant. 11 Mr Viscariello seeks orders in the alternative to permit his involvement in these proceedings under the Corporations Rules 2003 (SA) (“CR”) and the UCR. First, he seeks to be joined as a respondent under either the CR or the UCR and, failing that, as an interested party under the UCR. In the further alternative he seeks permission to be heard under the CR. The various rules that he relies upon in support of his application are set out below. The Corporations Rules 2003 12 The CR relevantly provide at rule 1.3 that: (1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules … (2). The Uniform Civil Rules 2020 apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules; and” 13 CR r 1.5 defines a respondent as a person: …against whom relief (except interlocutory relief) is claimed under the Corporations Act, the ASIC Act, or the Cross-Border Insolvency Act, whether in the originating process or not. -- 5 of 13 -- [2024] SASC 125 McIntyre J 4 14 CR r 2.13 provides for someone to be given leave to be heard without being a party to proceedings as follows: (1) The Court may grant leave to any person who is, or who claims to be: (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; to be heard in a proceeding without becoming a party to the proceeding. (2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may: (a). direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a respondent to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a respondent to a proceeding under subrule (3): (a) on application by the person or a party to the proceeding; or (b) on the Court’s own initiative. Uniform Civil Rules 2020 15 Party types are defined in UCR r 21.1 as follows: (1) Parties to an action are either applicants, respondents or interested parties. (2) An applicant is a party (whenever joined) seeking final relief from the Court in the action. (3) A respondent is a party (whenever joined)— (a) against whom final relief is sought from the Court in the action; or (b) whose interests may be directly and adversely affected by the orders sought in the action. (4) An interested party is a party (whenever joined) who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result. 16 Joinder of parties under the UCR is dealt with in UCR r 22.1 as follows: (1) The Court may at any stage order the joinder of a party to a proceeding or appellate proceeding on such conditions as it thinks fit. -- 6 of 13 -- [2024] SASC 125 McIntyre J 5 (2) Unless the Court otherwise orders, a person may only be joined as an applicant or appellant if the person consents to being so joined. (3) An application by a person to be joined as a party must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1. (4) The Court may order that a proceeding or appellate proceeding be treated as having been commenced by or against or in respect of the joined party on a date specified by the order. The Argument 17 Mr Viscariello claims to hold a secured interest in certain assets of Newmore Pty Ltd and contends that his rights as a secured creditor have been disregarded due to procedural failings in the liquidation. He has not identified any similar rights in relation to Bernsteen Pty Ltd. His interest in that company is summarised in his written submissions as follows:8 Viscariello is and remains a director, shareholder and unsecured creditor of Bernsteen Pty Ltd (in liquidation) CAN 008 178 863 (“Bernsteen”). At no time has Viscariello ever claimed to be a secured creditor of Bernsteen. 18 It is unclear on what basis Mr Viscariello seeks to be joined to the proceedings relating to Bernsteen Pty Ltd albeit he makes the same complaints concerning procedural irregularities in the liquidation of Bernsteen Pty Ltd as those he asserts in relation to Newmore Pty Ltd. I dismiss Mr Viscariello’s application in so far as it relates to Bernsteen Pty Ltd as no proper basis has been identified that would permit his being joined or otherwise heard in relation to that liquidation. I indicate that even had Mr Viscariello identified a basis for his application I would, in any event, have dismissed the application in relation to Bernsteen Pty Ltd for the same reasons as I dismiss the application in relation to Newmore Pty Ltd. 19 The applicant concedes, for the purpose of these proceedings, that Mr Viscariello is a secured creditor of Newmore Pty Ltd but opposes his application to be joined or otherwise heard in these proceedings. 20 Both parties filed detailed written submissions supplemented by oral argument. In summary, Mr Viscariello alleges that proper notice of key developments in the Newmore Pty Ltd liquidation was not provided to him as required by the UCR and CR, and that important information regarding the financial affairs of the liquidation has not been made available to him. He seeks to be formally joined as a party to the proceedings in order to address these issues and to protect his interests in any future distribution of assets. It is evident from his submissions that Mr Viscariello seeks to do more than challenge the orders made in the proceedings. He seeks in effect to examine the conduct of the 8 FDN 31 at [49]. -- 7 of 13 -- [2024] SASC 125 McIntyre J 6 liquidation by the applicant contending that he has not properly discharged his obligations and to reagitate matters arising from the Macks’ litigation.9 21 The applicant contends that the liquidation has been conducted in accordance with the CR, that the impugned orders were made correctly, and that that there is no proper basis for Mr Viscariello to be joined or otherwise heard in these proceedings under either the CR or UCR. Mr Viscariello’s submissions 22 Mr Viscariello’s submissions can be grouped into three main topics: his status as a secured creditor, alleged procedural deficiencies in the liquidation, and the necessity of his joinder to the proceedings. Status as a Secured Creditor 23 Mr Viscariello emphasised that his status as a secured creditor distinguishes him from general creditors and gives him a direct proprietary interest in the assets of Newmore Pty Ltd. He asserted that the liquidation proceedings, particularly in relation to the distribution of assets, have proceeded without giving due consideration to his secured interest. He argued that the failure to recognise his secured status jeopardised his entitlement to priority in any distribution of proceeds, as his claim as a secured creditor ought to be addressed before those of unsecured creditors. 24 According to Mr Viscariello, his secured claim gives him standing to participate in the proceedings to ensure that his rights are protected, especially as decisions regarding asset sales and creditor distributions are imminent. He expressed concern that without his joinder, the liquidation could proceed to a point where his secured interests would be irreversibly prejudiced. Alleged Procedural Deficiencies 25 A central aspect of Mr Viscariello’s argument was that the applicant failed to comply with the statutory notice provisions outlined in the CR. He contended that as a secured creditor, he was entitled to timely notice of key developments in the liquidation, particularly those involving the sale of secured assets and proposals for creditor distributions. He contends that the applicant failed to provide him with appropriate notice of critical meetings and decisions, including the liquidator’s reports to creditors and meetings discussing the allocation of liquidation proceeds. 26 Furthermore, Mr Viscariello submitted that the applicant had not been transparent in disclosing information relevant to the liquidation’s progress, including Newmore Pty Ltd’s financial position and the estimated distribution amounts for secured and unsecured creditors. He argued that this lack of 9 See for example FDN 31 at [38] – [46] and [52] – [67]. -- 8 of 13 -- [2024] SASC 125 McIntyre J 7 transparency had materially affected his ability to make informed decisions about how to protect his interests in these proceedings. Necessity of Joinder 27 Based on the above arguments, Mr Viscariello submitted that his involvement in the proceedings is essential to prevent further prejudice to his interests. He argued that as a secured creditor, his participation is necessary to ensure that his rights are properly recognised and that he has a voice in decisions that could affect the distribution of assets. He contended that without his involvement, there was a real risk that his claim would be overlooked or improperly addressed, particularly given the procedural deficiencies he has identified. He also asserted that his joinder would not delay or complicate the proceedings, but rather would contribute to a more just and equitable outcome by ensuring that the liquidation adhered to legal requirements. Consideration of Issues 28 The Applicant submits that UCR r 22.1 is inconsistent with the CR and that applications contained in paragraphs 1 and 2 of the revised interlocutory application must be dismissed to the extent that they rely on UCR r 22.1. I agree. The CR do not provide for the joinder of an interested party. That topic is, in my view, comprehensively covered by the ability of a person to be heard under CR r 2.13(1) without becoming a party. An interested party under the UCR is a category of party. The test for joinder as a respondent under CR r 2.13(3) is in different terms to UCR r 22.1 as are the definitions of respondent in the UCR or CR. It is my view that the appropriate vehicle for consideration of Mr Viscariello’s application is CR r 2.13; either leave to be heard under CR r 2.13(1) or joinder as a respondent under CR r 2.13(3). Should Mr Viscariello be joined as a respondent? 29 Corporation Rule r 2.13(3) permits the Court to order that a person who is, or who claims to be, a creditor, be added as a respondent to the proceeding. The applicant accepted, for the purpose of these proceedings, that Mr Viscariello is a secured creditor of Newmore Pty Ltd. This status does not however entitle him to be automatically joined to the proceedings. The Court must exercise its discretion in determining whether his joinder is necessary for the proper resolution of the proceedings. Joinder is not automatic and is typically granted only where the proposed party’s participation is essential to safeguard their legal rights or to assist in resolving matters before the Court. 30 Secured creditors are protected by the statutory framework governing liquidations, which provides mechanisms for ensuring that their interests are accounted for without requiring their formal participation in every aspect of the liquidation. Mr Viscariello has not identified any immediate threat to those rights that would justify his joinder. The matters that he complains of do not concern these proceedings but rather relate to the conduct of the liquidation. The criticisms of the orders made in these proceedings amount to an assertion that the applicant -- 9 of 13 -- [2024] SASC 125 McIntyre J 8 mislead the Court in the supporting materials. The applicant denies these allegations. Mr Viscariello has not provided a proper evidential basis for those assertions some of which appear to misunderstand the law (for example his assertions concerning payment of liquidator’s fees). There are other avenues for him to pursue such issues. 31 I have considered Mr Viscariello’s contentions concerning procedural deficiencies affecting these proceedings. Whilst there were some delays in complying with some of the requirements of the rules, the applicant did comply with the rules. Any delays were minor and did not affect the validity of the proceedings or prejudice Mr Viscariello’s rights as a secured creditor. 32 The question to be resolved in each case involving the potential joinder of a person as a respondent under CR r 2.13(3) is whether the person is a necessary party to the proceeding in order that the proceeding is properly constituted.10 In Re Ballistic Australia Pty Ltd a shareholder applied to be joined as an additional defendant in a winding up application. In ruling on that issue Brereton J (as he then was) observed:11 In reality, proceedings for winding up are not proceedings against the shareholders, even against a 50% shareholder, nor do they, at least in a legal sense, affect the interests of the shareholder. The shareholder continues to hold shares, although the status of the company may be changed by the process of liquidation. It is a necessary incident of holding a share in the company in the first place, that ultimately the shareholder’s right is to receive a return of capital and such dividend as there may be upon liquidation. 33 The same is true of creditors, even secured creditors such as Mr Viscariello. 34 The February 2024 orders relate to an application under Item 90-15 of the Insolvency Practice Schedule (Corporations), Schedule 2 of the Corporations Act and the July 2024 orders relate to an application under s 480(d) of the Corporations Act. I will deal with each in turn. 35 An application under Item 90-15 of the Insolvency Practice Schedule may be made by a liquidator to the Court seeking direction as to whether he or she would be justified in acting on a particular basis. The principles surrounding such applications for directions are well settled. In Re GB Nathan & Co Pty Ltd (in liq)12 McLelland J (as he then was) stated:13 ….the only proper subject of a liquidator's application for directions is the manner in which the liquidator should act in carrying out his functions as such, and that the only binding effect of, or arising from, a direction given in pursuance of such an application (other than rendering the liquidator liable to appropriate sanctions if a direction in mandatory or prohibitory form is disobeyed) is that the liquidator, if he has made full and fair disclosure 10 Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1338 at [22]-[23], Re Ballistic Australia Pty Ltd [2014] NSWSC 1495, [5]-[6]. 11 Re Ballistic Australia Pty Ltd [2014] NSWSC 1495 at [5]-[6]. 12 (1991) 24 NSWLR 674. 13 Ibid at 679-680. -- 10 of 13 -- [2024] SASC 125 McIntyre J 9 to the court of the material facts, will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by him in accordance with the direction. Modern Australian authority confirms the view that s 479(3) “does not enable the court to make binding orders in the nature of judgments” and that the function of a liquidator's application for directions “is to give him advice as to his proper course of action in the liquidation; it is not to determine the rights and liabilities arising from the company's transactions before the liquidation”… 36 An application for directions is an administrative non adversary proceeding. There is no respondent in the conventional sense.14 The February 2024 orders made under Item 90-15, do not, on their face affect anyone’s rights. The orders concern steps which the applicant was or would be justified in taking. The applicant had either already done these steps or was yet to do them. The orders did not require the applicant or indeed anyone else to do anything. 37 The application under Item 90-15 of the Insolvency Practice Schedule has been finally determined. Mr Viscariello’s contention that the February 2024 orders ought to be set aside faces a considerable hurdle concerning the question of utility. The applicant has acted upon those orders. Payments were made from the funds of Newmore Pty Ltd as directed. Newmore Pty Ltd now holds no funds and the applicant is no longer its liquidator.15 Mr Viscariello appears to seek to reopen this matter in order to require the applicant to undertake a comprehensive review of the remuneration claims by previous liquidators. There are no funds to undertake such a review. Without such funding, the applicant would not be required to consider undertaking the review.16 There is no utility in those orders being set aside. 38 As with the Insolvency Practice Schedule orders, an application under s 480(d) of the Corporations Act is not made “against” anyone. No relief is sought from anyone. An application under s 480(d) is not an adversarial proceeding and involves no potential for a right interest or expectation of a secured creditor such as Mr Viscariello to be directly affected in the manner described by Brereton J in Re Ballistic Australia Pty Ltd. Corporations Rules r 7.6 anticipates the potential for involvement of a creditor in the form of filing an objection however, that process would only result in the denial of protection to a liquidator, rather than there being any change in the rights of any creditor. No remedy flows to anyone if an order is not granted. 39 The July 2024 orders were sought as a consequence of the funds held by Newmore Pty Ltd being dispersed in accordance with the February 2024 orders. Had orders not been sought under s 480(d), the applicant was entitled to lodge an 14 In Re J W Murphy & P C Allen; Re BPTC Ltd (in liq) (1996) 19 ACSR 569 at 570. 15 FDN 15. 16 Corporations Act 2001 (Cth) s 545. -- 11 of 13 -- [2024] SASC 125 McIntyre J 10 end of administration return under s 509(1) of the Corporations Act. This would lead to Newmore Pty Ltd being deregistered three months later. 40 The application under s 480(d) has already been finally determined and there is no manner in which Mr Viscariello being given leave to be heard would assist the Court. Further an application for leave to reopen the original application, made under s 480(d) of the Corporations Act, is not an appropriate vehicle to seek to agitate a claim by indirect means as appears to be Mr Viscariello’s intention. If the applicant seeks to rely on the release granted, then the release can be revoked on proof that it was obtained by fraud, or by suppression or concealment of any material fact.17 41 Mr Viscariello has not established that his joinder as a respondent is necessary for the proper resolution of the proceedings nor that his participation is essential to safeguard his legal rights. Should Mr Viscariello be heard pursuant to Corporations Rule r 2.13(1)? 42 Having rejected Mr Viscariello’s applications to be joined as a respondent and as an interested party, I must consider his final alternative avenue for involvement in these proceedings. Mr Viscariello seeks to be heard in the proceedings, without becoming a party to the proceedings, on the basis that he is a creditor of Newmore. 43 The right to be heard was considered by Wigney J In Re Hundy (in his capacity as liquidator of 3 Property Group 13 Pty Ltd (in liq)) as follows:18 The Court’s power under r 2.13 of the Rules to grant leave to, relevantly, a creditor, claimed creditor or officer of a creditor of a company is plainly discretionary. That discretion is relevantly unfettered. Considerations which may be relevant to the exercise of the discretion would include the nature of the relevant proceeding in respect of which the applicant wishes to be heard, the nature and extent of the applicant’s interest in the outcome of that proceeding, and the extent to which the applicant’s participation in the proceeding would assist the Court in the resolution of the proceeding. 44 It is plain from this decision that a party seeking to be heard must demonstrate an evidentiary basis beyond “mere assertion and speculation” that there was some error or improper conduct on the part of the liquidator. Mr Viscariello has not done so. It is equally clear that the party would have to persuade the court that their participation in the hearing would assist the Court in considering the liquidator’s application. This is not the case here. 45 If the Court grants leave to be heard it may limit the basis upon which a person is granted leave. Restrictions may be placed upon the manner in which the person is heard.19 The Applicant submits, and I agree, that a grant of leave to be heard under CR r 2.13(1) cannot entitle a person to make an interlocutory 17 Section 480(3) of the Corporations Act (2001) (Cth) s 480(3). 18 [2022] FCA 1216 at [29]. 19 Re Hundy (in his capacity as liquidator or 3 Property Group 13 Pty Ltd. (in liq) [2022] FCA 1216 -- 12 of 13 -- [2024] SASC 125 McIntyre J 11 application of the type made by Mr Viscariello. Rather, it is my view that the grant is limited to a person being allowed a hearing (including seeking to have evidence admitted) in connection with an existing application made by a party, subject to any restrictions placed by the Court upon the manner in which the person may be heard. Accordingly, where, as in the present case, there is no unresolved application before the Court there is therefore no utility in granting leave to be heard. Stay Application 46 Mr Viscariello sought a stay of the orders made on 6 July 2024, in effect seeking to avoid the deregistration of Bernsteen Pty Ltd and Newmore Pty Ltd. The Court’s statutory power to order a stay in contained in the Enforcement of Judgments Act 1991 (SA) at s 17, which provides as follows:20 A party against whom a judgment has been given may apply to the court for a stay of execution, and the court may, if satisfied that there is a proper reason for granting the stay, grant the stay on such terms as it considers appropriate. 47 The orders for release and deregistration made under s 480(d) of the Corporations Act on 16 July 2024, were made, in my view, correctly. The orders were not made “against” Mr Viscariello, there is nothing for the former liquidator to “enforce”. All steps have been taken following the making of those orders which are contemplated by them. There is nothing put forward by Mr Viscariello to suggest that the making of those order affects his rights in any way. In any event, there is no utility to granting a stay in view of my findings above. I dismiss the application for a stay. 20 Enforcement of Judgments Act 1991 (SA) s 17. -- 13 of 13 --