Australian Securities and Investments Commission v Marco (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MCKERRACHER J
• Judgment Date: 27 May 2020
• Neutral Citation: [2020] FCA 719
• Date: 27 May 2020

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719

File number:	WAD 481 of 2018
Judge:	MCKERRACHER J
Date of judgment:	27 May 2020
Catchwords:	CORPORATIONS – application for the appointment of interim receivers pursuant to s 1101B(5) of the Corporations Act 2001 (Cth) – ongoing investigation by Australian Securities and Investments Commission into possible contraventions of the Corporations Act 2001 (Cth) – whether there is uniformity between interim and final relief sought – whether appointment is desirable – whether appointment would unfairly prejudice any person – where there is prima facie evidence of a significant shortfall in funds available to repay investors – where asset preservation orders pursuant to s 1323 of the Corporations Act 2001 (Cth) already in place – where criminal proceedings against the defendants are ‘on the cards’ – where no order sought for receiver costs to be paid out of defendants’ property at this stage ; PRACTICE AND PROCEDURE – application for leave to amend originating process pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) – where amendment seeks to identify final relief following extensive investigations – whether the proposed final relief arises from substantially the same facts as those already pleaded – where amendment would prevent a multiplicity of proceedings ; PRACTICE AND PROCEDURE – application for leave to intervene pursuant to r 9.12 of the Federal Court Rules 2011 (Cth) – whether intervener’s contribution is likely to be of assistance or benefit – application of two part test in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37 – whether intervener is better placed to represent the interests of investors – where intervener is in a special position compared with other investors ; EVIDENCE – tender of admissions – affidavits filed at various stages – read and not read – Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314 considered and applied
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 19, 33 Corporations Act 2001 (Cth) ss 19, 20, 420, 420(1), 420(2), 445D, 445GA(3), 601ED, 766C(1), 911A, 911A(1), 911A(2), 1101B, 1101B(1), 1101B(1)(a), 1101B(1)(a)(i), 1101B(1)(a)(vi), 1101B(4), 1101B(5), 1101B(8), 1323, Ch 1, Ch 7 Evidence Act 1995 (Cth) ss 69(1), 69(3), 75, 81, 128A Federal Court Rules 2011 (Cth) rr 8.21, 8.21(1)(b), 8.21(1)(g), 9.12(2), 9.12(3) Criminal Code Act Compilation Act 1913 (WA) ss 373, 409
Cases cited:	Australian Securities & Investments Commission v Adler [2001] NSWSC 451 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964 Australian Securities & Investments Commission v Burke [2000] NSWSC 694 Australian Securities and Investments Commission v Carey (No 3) (2006) 232 ALR 577; [2006] FCA 433 Australian Securities and Investments Commission v Carey (No 5) (2006) 58 ACSR 6; [2006] FCA 684 Australian Securities and Investments Commission v Carey (No 14) (2007) 158 FCR 92; [2007] FCA 310 Australian Securities and Investments Commission v CFS Private Wealth Pty Ltd [2018] FCA 1070 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2016] FCA 504 Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487; [2007] FCA 186 Australian Securities and Investments Commission v Idylic Solutions Ltd; Australian Securities and Investments Commission v PJCB. International Ltd [2009] NSWSC 1306 Australian Securities and Investments Commission v Linchpin Capital Group Ltd [2018] FCA 1104 Australian Securities and Investments Commission v Marco [2019] FCA 466 Australian Securities and Investments Commission v Marco (No 2) [2019] FCA 1712 Australian Securities & Investments Commission v Marshall Bell Hawkins Ltd (2002) 43 ACSR 340; [2002] FCA 1511 Australian Securities and Investments Commission v PJCB International Ltd [2009] NSWSC 34 Re AWB Ltd (2008) 222 FLR 240; [2008] VSC 43 Burrup Fertilisers Pty Ltd v Oswal (No 4) [2011] FCA 1503 Citation Resources Ltd v Landau [2016] FCA 1114 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97 Re Equititrust Ltd (2011) 288 ALR 800; [2011] QSC 353 Gjergja & Atco Controls Pty Ltd v Cooper [1987] VR 167 Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369 Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 Markopoulus v Marco [2020] WASC 79 McMahon v Gould (1982) 7 ACLR 202 National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 Ransley v Federal Commissioner of Taxation [2016] FCA 778 Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; [2011] HCA 54 Waldron v MG Securities A/asia Ltd [1975] VR 508
Date of hearing:	16 March 2020
Date of last written submissions:	14 May 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	185
Counsel for the Plaintiff:	Mr J Halley SC with Mr M Sherman
Solicitor for the Plaintiff:	Australian Securities and Investments Commission
Counsel for the Defendants:	Mr K Dharmananda SC with Ms J Thornton
Solicitor for the Defendants:	MGM O’Connor Lawyers Pty Ltd
Counsel for the Intervener (Leave Sought):	Mr C Beetham
Solicitor for the Intervener (Leave Sought):	Bennett + Co

ORDERS

		WAD 481 of 2018
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	CHRIS MARCO First Defendant ; AMS HOLDINGS (WA) PTY LTD (ACN 164 700 485) Second Defendant ; AMS HOLDINGS (WA) PTY LTD (ACN 164 700 485) AS TRUSTEE FOR AMS HOLDINGS TRUST Third Defendant

JUDGE:	MCKERRACHER J
DATE OF ORDER:	27 May 2020

THE COURT ORDERS THAT:

Leave to amend

1. Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), the plaintiff has leave to file and serve an amended originating process in the form of the proposed amended originating process attached to the Schedule and marked as annexure ‘WJL99’ to the affidavit of Whee-Jong Lim sworn 12 December 2019.

Receiver orders

2. Pursuant to s 1101B(5) of the Corporations Act 2001 (Cth) and until further order, Mr Robert Michael Kirman and Mr Robert Conry Brauer of McGrathNicol, Level 19, 2 The...