Federal Court of Australia

Australian Securities and Investments Commission v Macrolend Pty Ltd (No 2) [2025] FCA 710

ORDERS

THE COURT ORDERS THAT:

Subpoenas

1.    Pursuant to rules 24.01 and 24.13(1)(a) of the Federal Court Rules 2011 (Cth), the plaintiff has leave to issue a subpoena to attend to give evidence to the following persons:

(a)    Michael Haddon; and

(b)    Dean Alan Vane.

Service on the defendants

2.    Service on the first and third defendants is taken to be effected by service on the second defendant at the address for service set out in the notice of address for service emailed by the second defendant to the Associate to Justice Sarah C Derrington on 20 June 2025.

Submissions

3.    By 4.00pm on 2 July 2025, the plaintiff is to file and serve an opening together with a list of authorities.

4.    By 4.00pm on 9 July 2025, the defendants are to file and serve any opening together with a list of authorities.

Court Book

5.    By 4.00pm on 2 July 2025, the plaintiff is to provide to the defendants a revised Court Book Index that identifies the parts of the plaintiff's affidavit material filed on 28 February 2025 and 22 April 2025, including any exhibits to those affidavits, that it will not be reading at the trial.

6.    By 4.00pm on 10 July 2025, the plaintiff is to:

(a)    provide to the Associate to Justice Sarah C Derrington a Court Book in electronic form; and

(b)    provide to the defendants the Court Book in electronic form.

7.    The electronic Court Book must:

(a)    contain the documents referred to in the Court Book Index;

(b)    include an index which is individually hyperlinked to each document included in the Court Book;

(c)    be paginated consistently so that the internal pagination of the Court Book and the PDF reader are identical; and

(d)    be OCR searchable.

Other matters

8.    There be liberty to apply on 3 days' written notice.

9.    Costs in the proceeding.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

SARAH C DERRINGTON J:

Introduction

1    Mr Hodgson is the second defendant in this matter. This morning, I granted him leave to represent the first defendant and the third defendant, Macrolend Pty Ltd and Great Southland Limited, given the withdrawal of the legal representatives acting for him and those companies.

2    The trial of this matter has been adjourned from its initial commencement date of 7 July 2025 to 14 July 2025. Mr Hodgson now seeks a further adjournment of the trial until sometime in November of this year. ASIC opposes any further adjournment.

Should the adjournment be granted?

3    The basis of Mr Hodgson's application is, essentially, that he is unable to afford legal representation and expects to be able to do so in November. He says he will be able to do so by November because he anticipates the sale of an apartment in Maroochydore, at a price of about $5 million. Mr Hodgson previously deposed, by affidavit filed on 18 June 2025, that the property “will sell for between $6 million and $6.5 million”, and that “an offer to purchase will be received in July based on ongoing discussions with a number of interested parties”. By affidavit filed and read by leave today, and in his oral evidence, Mr Hodgson has revised that estimate to $5 million, on the basis of a smaller unit four floors below his having been sold for $4.7 million last month, although in cross-examination it emerged that that apartment had, in fact, been sold on 28 March of this year.

4    Mr Hodgson deposes that he has been unable to realise the equity in that property since it has been on the market from February of this year. I am not persuaded that a serious attempt to sell the property has been made, given the inconsistent evidence about its value and the fact that parties were apparently only “qualified” to bid for the property if they were “in the six to six and a half million dollar category”. Mr Hodgson has had available to him since at least March the value of the other property that was sold in the building.

5    I add that Mr Hodgson gave evidence that he owns another investment property at Forest Glen, which he estimates to be worth $800,000 – albeit, he says, it is in an unsaleable condition because it would not pass its building or pest inspection. That evidence is unconvincing. Property can be sold for land value alone, and his evidence in cross-examination was that it was worth $800,000 despite its uninhabitable state. The fact that Mr Hodgson and his wife do not wish to sell that property because they hope to live in it once the apartment in Maroochydore has sold is no explanation for not seeking to raise funds against that property, either by way of loan or by sale.

6    Mr Hodgson testified that he has been unable to raise money by way of a loan. He gave evidence however that he has made only one substantive application for a loan through Skybound Fidelis Bridging Capital, a non-traditional lender, in February of this year. The loan sought in that application was for approximately $2.3 million. Mr Hodgson gave evidence that, of that amount, approximately $470,000 was intended for the payment of legal fees, and the rest was for working capital. In that context, it is unsurprising that the potential lender cited reputational risk associated with the unresolved court action in relation to the companies as the reason for rejection of the application. Had Mr Hodgson applied only for an amount to cover his legal fees secured against property, being the Maroochydore apartment and the Forest Glen property, which Skybound Fidelis had valued collectively at $7.25 million, it is unlikely that reputational risk would have factored into the decision not to lend. I also note that that application was made in February. No evidence was proffered of any subsequent attempts between February and today to apply for any additional loan.

7    In cross-examination, Mr Hodgson was shown a document that had been produced by him that provided valuations, albeit old, of several companies in which he has significant shareholdings. Some of those companies had valuations approaching the $1 billion mark. In light of that evidence and in light of the value of the apartment at Maroochydore and the Forest Glen property, I am not persuaded that Mr Hodgson has established that he has been unable to raise sufficient funds.

8    I am also persuaded that it is not appropriate to adjourn the trial at this stage given the significant narrowing of the matters that will be dealt with at trial. The matter was originally set down for 10 days and has now been reduced to an estimate of two to three days. Much of the material in the statement of claim that might have been necessary to canvass at trial, including difficult questions about the nature of particular financial products, has now been admitted by Mr Hodgson. That is to his credit. There is one significant piece of evidence that will need to be called about a balance sheet valuation. Two witnesses will be called and Mr Hodgson will have the opportunity to cross-examine them on documents that, no doubt, he will have already seen.

9    The remainder of the issues are matters of law which ASIC will outline in its written submissions – I would urge in plain English, in language that a layperson might more readily understand – and Mr Hodgson will have the benefit of those submissions and have the opportunity then to perhaps seek whatever informal advice he might be able to obtain about the content of those submissions.

Disposition

10    For these reasons, the application to adjourn the trial is dismissed.

Associate:

Dated:    27 June 2025