Federal Court of Australia

Australian Securities and Investments Commission v Secure Investments Pty Ltd (No 3) [2025] FCA 399

ORDERS

THE COURT NOTES THAT:

A.    For the purpose of this Order, “Property” means all real or personal property, assets or interests in property of any kind, within or outside Australia including, by virtue of s 1323(2A) of the Corporations Act 2001 (Cth), any property held otherwise than as sole beneficial owner.

THE COURT ORDERS THAT:

1.    Timothy Bryce Norman and Robert Scott Woods of Deloitte Financial Advisory Pty Ltd are released and discharged as receivers and managers of the Property of the third defendant.

2.    The requirement for service of:

(a)    the interlocutory process filed 9 December 2024; and

(b)    the affidavit of Timothy Bryce Norman filed 9 December 2024;

upon the third defendant be dispensed with.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    These are the amended and revised reasons for judgment given on 10 April 2025. Whilst these reasons refine and develop those that were delivered ex tempore, the substance of what was said on 10 April has not been changed nor has any other material change been made: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329, 344 – 345 [30] – [31].

Background

2    In April 2020, the Australian Securities and Investments Commission (ASIC) commenced proceedings against the defendants: see Australian Securities and Investments Commission v Secure Investments Pty Ltd [2020] FCA 639. Those proceedings concerned allegations that the defendants had both carried on a financial services business without an Australian Financial Services Licence and operated an unregistered managed investment scheme. The balance of those allegations were made out at trial and, amongst other things, the first and second defendants were ordered to be wound up on 14 October 2020: Australian Securities and Investments Commission v Secure Investments Pty Ltd (No 2) (2020) 148 ACSR 154 (ASIC v Secure Investments (No 2)).

3    Relevantly, in the continuum of the proceedings, orders were made appointing Mr Timothy Norman and Mr Robert Woods of Deloitte Financial Advisory Pty Ltd as receivers and managers to the property of the third defendant, Mr Mudasir Mohammed Naseeruddin, on 1 May 2020. In that capacity, Messrs Norman and Woods were tasked with:

(1)    identifying, collecting and securing the Property of the third defendant held for the purposes of the Unregistered Scheme;

(2)    ascertaining the amount of the Investor Funds received by the third defendant;

(3)    identifying any dealings with, payments of, or distributions by or uses made of the Investor Funds by the third defendant;

(4)    identifying any Property purchased or acquired with Investor Funds;

(5)    recovering Investor Funds; and

(6)    providing a report to the Court within 28 days in relation to the matters referred to in subparagraphs (1) – (5).

4    The application before the Court now seeks orders releasing and discharging that appointment. It is said that Mr Norman and Mr Woods have carried out, to the fullest extent possible, the tasks imposed upon them by the Court. Ancillary orders are also sought as to the service of (a) the interlocutory process by which the present application is made; and (b) an affidavit of Mr Norman filed 9 December 2024 (the Norman Affidavit), upon Mr Naseeruddin. For the reasons that follow, the proposed orders are appropriate and should be made.

Release and discharge of receivers and managers

Standing to bring the application

5    ASIC sought the appointment of Messrs Norman and Woods as receivers and managers of the property of Mr Naseeruddin by an interlocutory process filed 30 April 2020. The Court made orders to that effect on 1 May 2020 pursuant to the power conferred by s 1323(1)(h)(i) of the Corporations Act 2001 (Cth) (the Act). By reason of s 1323(5) of the Act, ASIC is entitled to apply, as they now do, for, amongst other things, the discharge of that appointment.

Should discharge and release be granted?

6    The purposes of the appointment of receivers and managers to the property of Mr Naseeruddin were identified on 1 May 2020 (and have been set out above). In broad terms, this was to identify and secure property, identify and recover certain investor funds, and provide a report to the Court. In the Norman Affidavit, Mr Norman deposes to having furnished the Court with such a report on 29 May 2020. He notes that no property has been successfully recovered from Mr Naseeruddin. Nor is any future recovery anticipated. He indicates that he and Mr Woods have concluded their investigations and finalised all matters relevant to the receivership. In that context, it was submitted by counsel for ASIC, Mr Seefeld, that “[t]he purposes for the appointment of receivers and managers to the property of the third defendant have been carried out. There is no utility in the[ir] appointment continuing”.

7    On the evidence presently before the Court, that submission is most compelling. Messrs Norman and Woods have fulfilled the purposes of their appointment and there is no readily identifiable reason as to why they should be put to further time and expense as receivers and managers of the property of the third defendant. In those circumstances, it is appropriate that they be released and discharged from such roles forthwith.

Service under the Federal Court Rules 2011 (Cth)

8    By r 17.01(2) of the Federal Court Rules 2011 (Cth) (the Rules), an interlocutory application and any accompanying affidavit (here, the Norman Affidavit) is required to be served on any other party (here, Mr Naseeruddin) at least three days before the date fixed for hearing. In the ordinary course, that is facilitated by the “other party” having filed, with the Court, a notice of address for service which accords with Form 10: rr 5.02 and 11.07 of the Rules: and includes, amongst other details, an address of a place within Australia at which service may be effected: rr 11.01(1) and 11.01(3) of the Rules; see also Minus v Selth (No 2) [2017] FCA 1233, [27]. Where that party is represented by a lawyer with general authority to act upon their behalf, the address that is to be given must be that of the lawyer: r 11.01(2) of the Rules; see also r 11.01(4) of the Rules. Armed with such information, a party is able to effect service by, inter alia, sending the relevant document(s) by prepaid post to the other party’s “proper address” (being their address for service or, where no such address exists, their usual or last-known business or residential address): r 10.31(b) and Schedule 1 of the Rules.

9    But it is not always so straightforward. To that end, r 1.34 confers a broad, and perhaps unfettered, discretion upon the Court to “dispense with compliance with any of the Rules” – including, relevantly, those as to service – in circumstances where justice would appear to so require: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611, [7], adopted in Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28, [61].

10    Mr Naseeruddin was formally represented during the substantive proceedings in 2020 by Tony Hargreaves & Partners: see ASIC v Secure Investments (No 2), 156 [2]: who, amongst other things, caused a notice of appearance to be filed upon behalf of their client on 7 May 2020. Relevantly, that notice gave the “address for service” of Mr Naseeruddin as that of his lawyers. In the absence of the filing of a notice of ceasing to act, any subsequent notice of appearance or a formal notice of address for service, it was seemingly open for ASIC to have served Mr Naseeruddin at that address: rr 10.31 and 11.01 of the Rules. Very properly, ASIC refrained from doing so after becoming aware that Mr Naseeruddin is no longer represented by Tony Hargreaves & Partners nor the law firm that was engaged in their wake (Chester Metcalfe & Co); indeed, to ASIC’s understanding, no solicitor presently acts for Mr Naseeruddin.

11    In those circumstances, and as detailed in the affidavit of Mr Jarrah Nicholson filed 8 April 2025, ASIC came into contact with the Fulham Correctional Centre, where Mr Naseeruddin is currently held as an inmate. Mr Nicholson deposes to having inquired as to the manner in which the present interlocutory process and Norman Affidavit could be delivered to an inmate and, upon receipt of such information, subsequently complied with those procedures on 19 March 2025. The evidence before the Court indicates that Mr Naseeruddin (a) has been provided with physical copies of those documents; and (b) is aware of the present hearing.

12    In those circumstances, and in the event that the address for service of Mr Naseeruddin does, in fact, remain with Tony Hargreaves & Partners, it is appropriate that the requirements for service under the Rules be dispensed with pursuant to r 1.34 of the Rules. ASIC has made its best endeavours to comply with the rules for service and, upon becoming aware of their futility in the present context, went to further time and expense to ensure that this application and the Norman Affidavit were brought to the notice of Mr Naseeruddin well before the matter was ventilated in open Court. There can be no injustice to the third defendant by making the orders sought. As such, I will make the orders in the form proposed by ASIC.

Associate:    

Dated:    23 April 2025