Australian Securities and Investments Commission v Marco (No 6)

• Jurisdiction: Australia Federal only
• Judgment Date: 07 December 2020
• Neutral Citation: [2020] FCA 1781
• Court: Federal Court
• Date: 07 December 2020

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781

File number:	WAD 481 of 2018
Judgment of:	MCKERRACHER J
Date of judgment:	7 December 2020
Date of publication of reasons:	11 December 2020
Catchwords:	CORPORATIONS – managed investment scheme – winding up – whether scheme amounted to managed investment scheme required to be registered under s 601ED(1) of the Corporations Act 2001 (Cth) – where the personal defendant executed declarations of trust with investors and pooled funds in personal bank accounts – where personal defendant used funds to participate in ‘private placement programmes’ – where personal defendant transferred funds to the corporate defendant to purchase real property and vintage cars – whether the conduct of both defendants constituted the operation of a managed investment scheme – in circumstances where the personal defendant considered the corporate defendant to be an extension of his business dealings ; CORPORATIONS – financial services business – whether the defendants carried on a financial services business – whether the defendants breached s 911A of the Corporations Act by not holding an Australian Financial Services License – whether the personal defendant was dealing in a financial product – whether the corporate defendants’ holding of property assets formed part of the financial services business ; CORPORATIONS – final relief – winding up orders – contraventions of Ch 5C and Ch 7 of the Corporations Act – whether it is just and equitable that the scheme and the corporate defendant be wound up – whether receivers should be appointed on a final basis concurrently with liquidators – where receivers are necessary for identification and delivery up of scheme property ; CORPORATIONS – final relief – declarations – whether there is sufficient evidence to support the declarations sought ; CORPORATIONS – final relief – injunctions – where injunctions would expose the personal defendant to contempt of court for further contraventions – whether exposure to contempt of court for future contraventions is appropriate given the deliberateness and seriousness of the contraventions ; CORPORATIONS – receivers – administrators – liquidators – where the corporate defendant is placed in voluntary administration by the personal defendant after the filing of the application for winding up – where the creditors of the corporate defendant resolve that it be wound up after the final hearing of the winding up application – where interim receivers were appointed to the whole scheme six months ago – whether the interim receivers should replace the voluntary administrators as liquidators of the corporate defendant – orders under s 467B of the Corporations Act – in circumstances where the appointment of a single insolvency practitioner to the whole scheme will save time and expense in the winding up
Legislation:	Acts Interpretation Act 1901 (Cth) s 2C Australian Securities and Investments Commission Act 2001 (Cth) ss 19, 30, 33, Pt 3, Div 1 Corporations Act 2001 (Cth) ss 9, 19, 20, 435A, 435C(2), 436A, 439A, 439C(b), 439C(c), 440A(1), 440A(2), 461(1)(k), 462(2)(e), 464, 467B, 601EB, 601ED, 601ED(2), 601ED(2A), 601ED(4), 601ED(5), 601ED(8), 601EE, 601EE(1), 601EE(2), 761A, 761C, 761E, 761E(2), 761E(4), 763A(1)(a), 763B, 763B(a)(i), 763B(a)(iii), 763B(b), 764A, 766A, 766A(1)(b), 766C(1), 911A, 911A(1), 911A(2), 1101B(1), 1101B(1)(a)(i), 1012E(2), 1311(1), 1317E(3), 1323, 1324, 1324(1)(a), 1324B, 1656, 1657, Ch 5C, Ch 7 Federal Court of Australia Act 1976 (Cth) s 21 Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Competition and Consumer Commission v Renegade Gas Pty Ltd [2014] FCA 1135 Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423 Australian Securities Commission v AS Nominees Ltd (1995) 62 FCR 504 Australian Securities and Investments Commission v Arafure Equities Pty Ltd (2005) 56 ACSR 429; [2005] QSC 376 Australian Securities and Investments Commission v Carey (No 3) [2006] 2006 FCA 433 Australian Securities and Investments Commission v Carey (No 5) [2006] FCA 864 Australian Securities and Investments Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778; [2001] WASC 27 Australian Securities and Investments Commission v Emu Brewery Mezzanine Ltd (2004) 187 FLR 270; [2004] WASC 241 Australian Securities and Investments Commission v Linchpin Capital Group Ltd (No 2) [2019] FCA 398 Australian Securities and Investments Commission v Marco [2019] FCA 466 Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719 Australian Securities and Investments Commission v Marco (No 4) [2020] FCA 881 Australian Securities and Investments Commission v Marco (No 5) [2020] FCA 1512 Australian Securities and Investments Commission v Mercorella (No 2) (2006) 230 ALR 598; [2006] FCA 763 Australian Securities and Investments Commission v Monarch FX Group Pty Ltd (2014) 103 ACSR 453; [2004] FCA 1387 Australian Securities and Investments Commission v Munro [2016] QSC 9 Australian Securities and Investments Commission v MyWealth Manager Financial Services Pty Ltd (No 3) [2020] FCA 1035 Australian Securities and Investments Commission v Ostrava Equities Pty Ltd [2016] FCA 1064 Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561; [2002] NSWSC 310 Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 Australian Securities and Investments Commission v Takaran Pty Ltd (2002) 170 FLR 388; [2002] NSWSC 834 Australian Securities and Investments Commission v Westpoint Corporation Pty Ltd (2006) 227 ALR 623; [2006] FCA 135 Australian Softwood Forests Pty Ltd v A-G (NSW) (Ex rel Corporate Affairs Commission) (1981) 148 CLR 121; [1981] HCA 49 Baxter Global Investments Pty Ltd v Marco [2020] NSWSC 1293 BMI Ltd v Federated Clerks Union of Australia (1983) 76 FLR 141 BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Citrix Systems Inc v Tele Systems Learning Pty Ltd (in liq) (1988) 28 ACSR 529 Clowes v Commissioner of Taxation (Cth) (1954) 91 CLR 209; [1954] HCA 10 Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 Re Courtenay House Capital Trading Group Pty Ltd (in liq) [2020] NSWSC 780 Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61 In the matter of Evcorp Grains Pty Ltd ACN 134 204 050 (No 2) [2014] NSWSC 155 In the matter of SPG Projects Pty ltd (in liq) [2020] NSWSC 34 Kirman v RWE Robinson and Sons Pty Ltd (in liq), in the matter of RWE Robinson and Sons Pty Ltd (in liq) [2019] FCA 372 Markopoulus v Marco [2020] WASC 79 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53
Division:	General Division
Registry:	Western Australia
National Practice...