Ambient Advertising Asset Stripping Scandal Rocks Failed Ad Agency

The Federal Court in Australia is currently hearing allegations of "improper" conduct against Mark Fishwick, a prominent figure in the advertising industry. Fishwick is accused of asset stripping Ambient Rail, an advertising agency that went into administration almost a decade ago.

The case centers around a sales agent contract with APN Outdoor, which was later acquired by JCDecaux. The contract was initially with Ambient Rail but was later moved to Captive Vision Outdoor, a company that Fishwick founded with his son Michael as part of Venetian Media Group (VMG). The move left behind trade debts and stripped Ambient Rail of a valuable asset.

Brad Tonks, a partner at insolvency specialists PKF and the liquidator of Ambient Rail, is going after Fishwick and Captive Vision Outdoor for their alleged involvement in the asset stripping. Alan Conder, who is shown on LinkedIn as the managing director of Captive Vision Pty Ltd, was also named in the case, but the proceedings against him were dismissed by the Federal Court last week. Conder and his wife Lynn were ordered to pay their own costs.

Fishwick and Captive Vision Outdoor are defending the long-running action, and costs have already exceeded $1 million. The Federal Court judge, Justice Markovic, summarized the case by stating that the plaintiffs claim that the defendants engaged in a scheme to strip Ambient Rail of its assets during and after a dispute between Fishwick and his fellow shareholder, Milan Bozic.

Tonks alleges that Fishwick engaged in "improper" conduct and breached his fiduciary and statutory duties as a company director. According to court filings, Fishwick was not "acting honestly," did not act in the best interests of Ambient, and "misused his position" as a director. The liquidator told the Federal Court that Ambient Rail has suffered loss or damage as a result of Fishwick's breach of his duties.

Fishwick has been a director of other failed advertising companies that ended up in administration, including Ambient Advertising in 2014. In 2016, he was cross-examined by a court-appointed special liquidator about allegations that Ambient Advertising had overcharged clients and the alleged transfer of business between Ambient Advertising and Revolution 360, an ad agency he formed after Ambient Advertising went into administration.

In the current case, which is being heard in the Federal Court, Fishwick allegedly arranged in 2013 for a NSW Rail contract between Ambient and APN Outdoor to be placed with a new company. This essentially left debts in Ambient and moved the sales agent contract, which gave it the right to sell space at NSW Rail sites, to Captive Outdoor.

The liquidator alleges that Captive generated about $16 million in revenue between 2014 and 2018. Documents lodged with the Federal Court allege that Andrew Hines, currently the chief operating officer at JCDecaux and then at APN Outdoor, was asked to transfer the NSW Rail contract and that of Metro Trains Melbourne (MTM). Damian Potter, the current commercial director at JCDecaux and then at APN Outdoor, was also involved in the new contract, according to 2013 emails quoted by the liquidator.

From December 2014, APN Outdoor inked new sales agent contracts for the NSW Rail and MTM licenses with Captive Vision, with terms substantially similar to that given to Ambient. The liquidator maintains that Captive Vision essentially was the same business as Ambient. And around the same time, Captive added a sales agent agreement with APN Outdoor for the Public Transport Authority of Western Australia.

The case has been ongoing for a long time. Tonks and his colleague John Vouris were appointed by Fishwick as administrators of Ambient Rail on April 4, 2014.