Federal Court of Australia

Australian Securities and Investments Commission v Falcon Capital Limited (No 2) [2025] FCA 1034

ORDERS

THE COURT NOTES THAT: for the purpose of this order:

“Digital Assets” means property, as defined under s 9 of the Corporations Act 2001 (Cth) that is a digital currency, virtual currency, cryptocurrency or similar, or a digital asset, virtual asset or crypto-asset which is a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held or transferred electronically by a type of distributed ledger technology or another distributed cryptographically verifiable data structure.

“Property” means all real or personal property, assets or interests in property of any kind, within or outside Australia including, by virtue of subsection 1323(2A) of the Corporations Act, any property held otherwise than as sole beneficial owner, and for the avoidance of doubt includes Digital Assets.

THE COURT ORDERS THAT:

1.    Paragraph 1 of the interlocutory application filed by the Third Defendant on 7 August 2025 be dismissed.

Appointment of receiver

2.    Pursuant to s 1323(1)(h)(i) of the Corporations Act, Paul Anthony Allen of PKF Melbourne (Receiver) be appointed as receiver to the Property of the Third Defendant, Mr Simon Selimaj.

3.    The Receiver has, in respect of the Property of the Third Defendant, the following powers:

(a)    the power to do all things necessary or convenient to be done for or in connection with, or as incidental to, the identification, preservation and securing of all the Property of the Third Defendant for the benefit of potential creditors; and

(b)    without limiting the generality of the power in the preceding sub-paragraph, the power to enter into possession and take control of the Property of the Third Defendant to the extent that the exercise of the power is reasonably necessary to achieve the purpose set out in paragraph 3(a) above.

4.    The powers referred to in paragraph 3 above shall not extend to the sale, letting or encumbering of the Property of the Third Defendant without prior leave of the Court or the consent of the Third Defendant.

5.    The Receiver has the power to investigate and report on the following matters:

(a)    the identification of the assets and liabilities of the Third Defendant;

(b)    the solvency of the Third Defendant;

(c)    any information necessary to assess the financial position of the Third Defendant; and

(d)    any other matter that the Receiver considers relevant to the identification, preservation and securing of all the Property of the Third Defendant for the benefit of potential creditors,

and must, within 90 days of the date of this order, provide the Court and parties with a report as to the receivership of the Third Defendant.

6.    The Plaintiff provide the Receiver with copies of such books and records relating to the Third Defendant which have been obtained by the Plaintiff under Pt 3, Div 3 of the Australian Securities and Investments Commission Act 2001 (Cth), that the Receiver reasonably requests in writing for the purpose of performing his duties.

7.    The Receiver is entitled to such remuneration and expenses properly incurred in the performance of his duties and the exercise of his powers, as may be fixed by the Court on the application of the Receiver.

8.    The remuneration and expenses of the Receiver be paid, in the first instance, by the Plaintiff.

9.    The Plaintiff have liberty to apply for an order that it be indemnified out of the assets of the Third Defendant for sums paid to the Receiver by way of remuneration for and expenses of the receivership of the Property of the Third Defendant.

Freezing orders

10.    Paragraph 9 of the orders made on 26 June 2025, providing for matters which the Third Defendant is not prevented from doing, be varied to add the following subparagraphs:

“e.    the Receiver, or anyone else authorised by them, from taking any action in relation to the Property of the Third Defendant; or

f.    the Third Defendant from paying or otherwise incurring a liability for costs reasonably incurred: from the appointment of the Receiver according to these orders; or because of the Plaintiff’s ongoing investigation as referred to in paragraphs 8 to 14 of the first affidavit of Brody Wons dated 24 February 2025 and paragraphs 6 to 11 of the fifth affidavit of Brody Wons dated 20 June 2025.”

Other matters

11.    Subject to further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c), the confidential affidavit of the Third Defendant sworn 6 August 2025 and the confidential submissions of the Third Defendant dated 18 August 2025 be suppressed and not be published.

12.    The costs of the Third Defendant’s interlocutory application filed on 7 August 2025 be reserved.

13.    The costs of the Plaintiff’s application for the orders in paragraphs 21-25 of its Further Amended Originating Process be reserved, for determination after the report of the Receiver has been received by the Court.

14.    There be liberty to apply.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    There are two issues before the Court for determination:

(a)    The plaintiff (ASIC) applies for the relief set out in paragraphs 21-25 of its further amended originating process filed on 23 June 2025. In summary, ASIC seeks the appointment of a receiver to the property of the third defendant, Simon Selimaj, pursuant to s 1323(1) of the Corporations Act 2001 (Cth).

(b)    Mr Selimaj applies to have set aside the orders made by the Court on 23 June 2025 and paragraphs 1, 8 and 9 of the orders made on 26 June 2025. In broad terms, those orders were travel restraint orders and freezing orders. Mr Selimaj’s application is brought by paragraph 1 of his interlocutory application dated 6 August 2025.

2    In addition to the above, by paragraph 2 of his interlocutory application, Mr Selimaj seeks a suppression or non-publication order in respect of a confidential affidavit that he made dated 6 August 2025 and his confidential submissions dated 18 August 2025. These orders are not opposed and I consider it appropriate to make the orders sought. It is not practicable to provide reasons for these orders without going into confidential matters.

3    By way of background, this proceeding was commenced by ASIC on 24 February 2025 with the filing of an originating process against Falcon Capital Limited (Falcon) (as first defendant) and Mr David Charles Knowles Anderson (as second defendant). Mr Selimaj was not a party to the proceeding at that stage. On 24 February 2025, the Court made freezing orders against Falcon and Mr Anderson. These orders were continued on 27 February 2025. On 17 March 2025, another freezing order was made in relation to the property of Falcon and Mr Anderson.

4    On 9 April 2025, the Court made orders for the winding up (on just and equitable grounds) of Falcon and for the appointment of a receiver to the property of Mr Anderson: Australian Securities and Investments Commission v Falcon Capital Limited [2025] FCA 359. I note that the making of the receivership order was not opposed by Mr Anderson.

5    On 20 June 2025, an ex parte application was filed by ASIC for the joinder of Mr Selimaj as the third defendant to the proceeding and for travel restraint orders and freezing orders against him. The application was supported by an affidavit of Brody Wons dated 20 June 2025 (the Fifth Wons Affidavit) and an outline of submissions dated 22 June 2025 (the Ex Parte Submissions). Following an ex parte hearing on 23 June 2025, the Court made orders substantially in the terms sought by ASIC, with the travel restraint orders and freezing orders expressed to continue until 4.00 pm on 26 June 2025.

6    On 26 June 2025, the matter returned to Court on an inter partes basis. Mr Selimaj was represented at the hearing and consented to a continuation of the travel restraint orders and the freezing orders until 4.00 pm on 27 February 2026.

7    Subsequently, Mr Selimaj filed the interlocutory application dated 6 August 2025 and ASIC sought a hearing for the relief sought in paragraphs 21-25 of its further amended originating application. Timetabling orders were made for the hearing of these applications. The hearing of both applications took place on 21 August 2025.

8    The material relied on at the hearing was as follows.

(a)    ASIC relied on the affidavit of Mr Wons dated 29 July 2025 (the Seventh Wons Affidavit) and the affidavit of Mr Wons dated 12 August 2025 (the Eighth Wons Affidavit). ASIC also relied on the earlier Wons affidavits filed in the proceeding other than Mr Wons’s sixth affidavit, being the affidavit dated 20 June 2025. ASIC relied on an outline of submissions dated 12 August 2025, the Ex Parte Submissions and its submissions dated 31 March 2025 (filed in connection with the application to wind up Falcon).

(b)    Mr Selimaj relied on his affidavits dated 10 July 2025 and 7 August 2025. He also relied on his confidential affidavit dated 6 August 2025. Mr Selimaj also called for the production of a particular document and then tendered the document produced (see further below). Mr Selimaj relied on an outline of submissions dated 18 August 2025 (which is not confidential) and confidential submissions of the same date.

9    Mr Selimaj puts his application to set aside the travel restraint orders and the freezing orders on two bases. The first is that, in presenting its ex parte application on 23 June 2025, ASIC failed to make full and fair disclosure of all matters within its knowledge and which were material to the Court. The second is that the jurisdictional and evidentiary bases for the making of the travel restraint orders and the freezing orders are not met.

10    Mr Selimaj opposes the making of the receivership orders sought by ASIC. His contentions in this regard overlap to some extent with his contentions regarding the travel restraint orders and the freezing orders.

11    I will start by considering Mr Selimaj’s application to set aside the travel restraint orders and the freezing orders. I will then consider ASIC’s application to have a receiver appointed to the property of Mr Selimaj.

Travel restraint and freezing orders

12    As set out above, Mr Selimaj contends that the travel restraint orders and the freezing orders should be set aside on two independent bases. I will deal with each in turn.

Ground 1: Lack of full and fair disclosure

13    The first basis is that, in presenting its ex parte application on 23 June 2025, ASIC failed to make full and fair disclosure of all matters within its knowledge and which were material to the Court.

14    There is no real issue between the parties as to the applicable principles. ASIC sets out certain principles in paragraphs 15 and 16 of its outline of submissions and Mr Selimaj states in his submissions that he agrees with that statement of principle. The parties agree, and I accept, that a plaintiff has a duty of candour to bring to the attention of the court “all material facts which [the absent] party would presumably have brought forward in his defence to that application”: Thomas A Edison Ltd v Bullock [1912] HCA 72; 15 CLR 679 at 682 per Isaacs J; International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [131]. As explained by Gillard AJA in Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; 12 VR 639 at [22]:

[T]he court’s function is to determine on the material that was placed before the judicial officer at first instance, whether a party has failed to discharge the obligation which rests upon any party seeking an order ex parte, namely, making a full and fair disclosure of all matters within its knowledge and which are material, to the court. The court is not concerned whether the order should have been made on the material before the court. Whether or not the court will set aside the order upon proof of the failure to discharge the obligation depends upon the particular circumstances.

See also Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 at [21] per Kenny J.

15    Mr Selimaj submits that the affidavit material relied on by ASIC at the ex parte hearing on 23 June 2025 and the Ex Parte Submissions are in the nature of inter partes evidence and submissions, respectively. Mr Selimaj submits that the evidence and submissions did not seek to advance what may have been said by Mr Selimaj in reply. Mr Selimaj submits that they contained glaring omissions as to matters that ought to have been highlighted to the Court, both in terms of evidence and by way of submissions.

16    The first point that Mr Selimaj raises in this regard is that the Court was not informed that Mr Selimaj was not the subject of investigation by ASIC. In making this point, Mr Selimaj submits that, in order for the Court to have power to make the travel restraint orders and the freezing orders under s 1323(1) of the Corporations Act (which was a provision relied on by ASIC in seeking such orders), it was necessary for Mr Selimaj to be the subject of an ASIC investigation. Section 1323(1)(a) (being the relevant paragraph) requires that an investigation is being carried out under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) or the Corporations Act in relation to an act or omission by “a person”, being an act or omission that constitutes or may constitute a contravention of the Corporations Act. On that basis, Mr Selimaj submits that it is a jurisdictional prerequisite that an investigation was being carried out under the ASIC Act or the Corporations Act in relation to an act or omission by Mr Selimaj. Mr Selimaj contends that that jurisdictional prerequisite was absent and that ASIC failed to disclose this to the Court at the ex parte hearing on 23 June 2025.

17    In response to those submissions, ASIC pointed to paragraph 10 of Mr Wons’s affidavit dated 24 February 2025 (the First Wons Affidavit), which was relied on by ASIC at the ex parte hearing on 23 June 2025. In that paragraph, Mr Wons stated that, on 14 February 2025, ASIC expanded an investigation that was on foot to expressly include Mr Anderson and further suspected contraventions. Mr Wons stated that the current scope of ASIC’s investigations included suspected contraventions of certain provisions of the Corporations Act, the ASIC Act and the Crimes Act 1958 (Vic) (as there set out) “by Falcon Capital Limited (ACN 119 204 554) … and/or Falcon’s officers, representatives, associates and related entities …”. Mr Selimaj was a director of Falcon at all relevant times. Therefore, ASIC submitted, Mr Selimaj was the subject of investigation by reason of his role as an officer of Falcon.

18    Mr Wons did not refer to or annex any document to support that description of the then current scope of the investigation. During the hearing of the present applications, counsel for Mr Selimaj called for production of any document from ASIC naming Mr Selimaj as the subject of investigation. In response to this call, ASIC produced a document headed “Amended Section 13 File Note” dated 14 February 2025. Mr Selimaj tendered this document and it went into evidence. The document is consistent with and supports the evidence in paragraph 10 of the First Wons Affidavit. In the section of the document headed “Amended notice preamble” there is reference to an investigation in relation to suspected contraventions of specified provisions of the Corporations Act, the ASIC Act and the Crimes Act “by Falcon Capital Limited (ACN 119 204 554) … and/or Falcon’s officers, representatives, associates and related entities …”. Accordingly, as I have said, the document is consistent with and supports the evidence in paragraph 10 of the First Wons Affidavit.

19    Mr Selimaj submitted that the Amended Section 13 File Note did not go far enough because it did not refer to Mr Selimaj by name. Mr Selimaj noted that Mr Anderson is referred to by name as the subject of investigation. Mr Selimaj submitted that it was necessary for him to be referred to by name in the document for the jurisdictional requirement in s 1323(1)(a) to be met. I do not consider this submission to have merit. The question is whether or not a particular person (here, Mr Selimaj) is the subject of investigation by ASIC. A person can be the subject of an investigation by being identified as an “officer” of a company. Here, Mr Selimaj was an officer of Falcon and as such was the subject of investigation. The fact that Mr Anderson was identified by name, while Mr Selimaj was not, is neither here nor there.

20    I am therefore satisfied that Mr Selimaj was the subject of investigation by ASIC in relation to suspected contraventions of the Corporations Act. Accordingly, the jurisdictional requirement in s 1323(1)(a) was satisfied. It follows that this aspect of Mr Selimaj’s non-disclosure argument must be rejected.

21    Mr Selimaj’s second point (as part of his non-disclosure contention) is that the affidavit material relied on by ASIC and the Ex Parte Submissions were entirely silent as to Mr Selimaj’s co-operation with the liquidators of Falcon. Mr Selimaj submits that the distinct impression given by the affidavit material and submissions was that Mr Selimaj was uncooperative and that, by implication, the Court should draw the inference that he is the type of person who may engage in conduct to frustrate the Court’s processes.

22    I have reviewed the Ex Parte Submissions and the Fifth Wons Affidavit (which was the principal affidavit relied on by ASIC at the ex parte hearing). In my view, ASIC’s presentation of the ex parte application did not rely to any material extent on the proposition that Mr Selimaj was uncooperative in his dealings with the liquidators of Falcon. The way in which the application was presented is demonstrated by paragraph 7 of the Ex Parte Submissions, in which ASIC submitted:

In summary, ASIC is concerned that:

(a)    Falcon has conducted activities in contravention of law as set out in ASIC’s submissions dated 1 April 2025 in support of orders for winding up Falcon (winding up submissions);

(b)    Mr Selimaj and Mr Anderson had not complied with their duties as directors of Falcon and related entities prior to orders being made for winding up of Falcon and the FGMF and related funds;

(c)    Mr Selimaj has received, based on ASIC’s preliminary analysis, in excess of $1.4 million into his personal bank accounts or bank accounts of entities associated with him, without any legitimate basis for payments in that amount being apparent to ASIC or disclosed to investors; and

(d)    Mr Selimaj and Mr Anderson may seek to depart from Australia without notice, and be unavailable to respond to ASIC’s continuing investigation, in circumstances where ASIC suspects contraventions by each of them.

23    The thrust of the evidence and the Ex Parte submissions was that ASIC had concerns about the management of the First Guardian Master Fund (FGMF) while Mr Selimaj was a director of Falcon (which was the responsible entity for the FGMF) and that ASIC also had concerns about transactions involving Mr Selimaj: see, in particular, paragraphs 26-27 of the Fifth Wons Affidavit. That affidavit also dealt with Mr Selimaj’s overseas connections (at paragraph 57) and the importance of Mr Selimaj to ASIC’s investigations (paragraphs 58-60). The affidavit dealt briefly with Mr Selimaj’s engagement with the liquidators of Falcon, at paragraphs 61-62, referring to correspondence between ASIC and the liquidators (which was annexed in Tabs 47 and 48 of Exhibit BW-7).

24    In my view, neither the Ex Parte Submissions nor the Fifth Wons Affidavit conveyed, expressly or implicitly, that Mr Selimaj had been uncooperative in his dealings with the liquidators of Falcon and that this provided a basis for making the orders sought by ASIC. In these circumstances, I do not accept that it was necessary for ASIC to draw the Court’s attention to the fact or contention that Mr Selimaj had been co-operative with the liquidators in the ex parte application. That cooperation was not germane to the basis upon which the application was brought.

25    The third point relied on by Mr Selimaj in relation to his non-disclosure argument is that both the Ex Parte Submissions and the Fifth Wons Affidavit made much of a Lamborghini motor vehicle. Mr Selimaj submits that the gravamen of both the Ex Parte Submissions and the affidavit was that Mr Selimaj was some form of high-flying rogue director, using company funds to purchase for himself a flashy Italian sports car, and then refusing to cooperate with the liquidators of Falcon in relation to the return of the vehicle.

26    Mr Selimaj refers, in particular, to paragraphs 41 and 42 of the Fifth Wons Affidavit, where reference is made to a letter from the liquidators to Mr Selimaj dated 17 April 2025 (which is Tab 28A of Exhibit BW-7) and the failure of Mr Selimaj to provide material in response to the letter. Mr Selimaj submits that the extract from the letter in paragraph 41 of the affidavit is incomplete in that it omits important passages from page 2 of the letter, where the liquidators wrote that they were arranging for the vehicle to be collected from Mr Selimaj that afternoon (i.e. on 17 April 2025) and asked Mr Selimaj to confirm that he would make the vehicle available for collection. Further, Mr Selimaj submits that the affidavit and submissions failed to draw attention to the fact that Mr Selimaj had cooperated by making the vehicle available for collection, a fact that was known to ASIC (as can be seen from page 4 of a letter from the liquidators to ASIC dated 20 June 2025 (Tab 48 of Exhibit BW-7)). Mr Selimaj also refers to paragraph 16(a) of the Ex Parte Submissions, which refers to the purchase of the vehicle in February 2023 and states that Mr Selimaj asserted to the liquidators that it had been purchased with personal funds. Mr Selimaj submits that the submissions failed to disclose that the car had been collected by the liquidators, with Mr Selimaj’s cooperation.

27    The difficulty with Mr Selimaj’s submissions is that the point being made by ASIC in relation to the vehicle (in both the Fifth Wons Affidavit and the Ex Parte Submissions) was that, on the basis of ASIC’s investigation and preliminary tracing, it appeared that Mr Selimaj had obtained the benefit of investment funds. The issue with the vehicle was that it appeared to have been purchased by Falcon and made available for use by Mr Selimaj. Accordingly, the fact that the motor vehicle had been collected by the liquidators from Mr Selimaj on 17 April 2025 was not to the point. Given the way in which ASIC sought to rely on the facts and circumstances pertaining to the vehicle, I do not consider the fact that it had been collected with Mr Selimaj’s cooperation to be material to the application.

28    Insofar as counsel for Mr Selimaj contended that paragraphs 16(b) and (c) of the Ex Parte Submissions were incomplete, I am not satisfied that the additional evidence referred to in Mr Selimaj’s affidavit of 7 August 2025 materially alters the picture presented by ASIC.

29    For these reasons, I do not accept the contention that ASIC failed to make full and fair disclosure to the Court when it presented its ex parte application on 23 June 2025.

Ground 2: Absence of jurisdictional or evidentiary basis

30    I now turn to the second basis upon which Mr Selimaj seeks to set aside the travel restraint orders and freezing orders. Mr Selimaj contends, in summary, that the jurisdictional and evidentiary bases for the making of such orders is absent. I note that this is the first occasion on which there has been a contested hearing on the question whether the travel restraint orders and freezing orders should be made. The orders were made on an ex parte basis on 23 June 2025. When the matter returned to court on 26 June 2025, Mr Selimaj consented to the continuation of the orders. The circumstances in which he did so are explained in his confidential affidavit dated 6 August 2025. In light of those circumstances, which I do not set out as they are confidential, I consider that there should be no inhibition on Mr Selimaj now seeking to contest whether the travel restraint and freezing orders should be made. At the hearing of the present applications, ASIC accepted this. Accordingly, in considering the second basis on which Mr Selimaj seeks to set aside the travel restraint and freezing orders, I approach the question on the basis that the burden is on ASIC to establish that it is necessary or desirable to make travel restraint orders and freezing orders for the purpose identified in s 1323(1), namely (relevantly) to protect the interests of a person (referred to in the section as an “aggrieved person”) to whom the person referred to in paragraph (a) of the section (referred to as the “relevant person”) may become liable to pay money by way of damages or compensation or to account for financial products or other property.

31    Insofar as Mr Selimaj contends that the jurisdictional basis for the making of travel restraint orders and freezing orders is absent because there is no investigation on foot in relation to Mr Selimaj, I have already dealt with and rejected this argument. For the reasons given above, I am satisfied that an investigation is being carried out by ASIC under the ASIC Act into an act or omission of Mr Selimaj, being an act or omission that may constitute a contravention of the Corporations Act.

32    The principles applicable to the making of travel restraint orders under s 1323(1) are well established. I dealt with these principles recently in Australian Securities and Investments Commission v Merhi [2025] FCA 829 (Merhi) at [68]-[69], by reference to the judgment of O’Callaghan J in Australian Securities and Investments Commission v Guo (No 2) [2024] FCA 251 at [25]-[32]. I refer to and adopt that statement of the applicable principles.

33    In the present case, as in Merhi, I would highlight the following aspects of the principles:

(a)    there is an element of risk assessment and risk management in the judgment the court is called on to make;

(b)    it is a serious matter to restrain a person from travelling internationally; and

(c)    the private right to travel may be outweighed by the public interest in ASIC being able to pursue its investigation.

34    Further, the five factors referred to by Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (ActiveSuper) are relevant.

35    The issue to be determined is whether it is necessary or desirable to make travel restraint orders as sought by ASIC for the purpose of (in summary) protecting the interests of a person to whom Mr Selimaj may become liable to pay compensation or damages. I will address each of the five factors referred to by Gordon J in ActiveSuper.

36    The first matter is the importance of protecting investors’ interests. This factor is weighty in the present case, given the scale and nature of potential losses of investors in the FGMF (the responsible entity of which was Falcon, of which Mr Selimaj was a director at relevant times). The attendance of Mr Selimaj at examinations to be conducted by ASIC is likely to be very important in understanding the transactions entered into by Falcon.

37    The second factor is the length of time that Mr Selimaj has been subject to a travel restraint order. This is relatively short (although not insignificant), namely since 23 June 2025.

38    The third factor is the risk that Mr Selimaj might leave the jurisdiction and not return. While Mr Selimaj does have links overseas, there is no clear evidence that he is a flight risk. Nevertheless, given the scale of potential losses of relevant investors, and therefore the potential claims for damages against Mr Selimaj, I consider that there is at least some risk that he may leave and not return to Australia.

39    The fourth matter is Mr Selimaj’s legitimate interest in being allowed to travel internationally. This is a significant factor and it weighs against the making of a travel restraint order.

40    The fifth matter is the length of time for which the matter has been ongoing. ASIC’s investigation into Mr Selimaj has been on foot since September or November 2024. The material before the Court does not enable me to make any finding as to whether ASIC’s investigation has taken longer than necessary. However, I am satisfied that ASIC is actively pursuing the investigation by taking relevant steps.

41    Having regard to these five factors, and the facts and circumstances generally as set out in the affidavits, I consider that the travel restraint orders sought by ASIC are necessary or desirable for the purpose referred to in s 1323(1). The material demonstrates the scale and seriousness of the alleged contraventions and the scale of potential losses of investors. It is critical that Mr Selimaj be available for examination by ASIC as part of its investigation. I therefore consider it appropriate that travel restraint orders be made. As such orders are already in place, I consider that they should remain in place. I consider the duration of the current orders, namely until 4.00 pm on 27 February 2026, to be appropriate.

42    I turn to the freezing orders. Again, I approach this as an application by ASIC for the making of freezing orders.

43    The freezing orders are sought on an interim basis under s 1323 and/or s 23 of the Federal Court of Australia Act 1976 (Cth).

44    I discussed the applicable principles in Australian Securities and Investments Commission v Remedy Housing Pty Ltd [2021] FCA 673 at [12]-[15]. I adopt that statement of the applicable principles. The considerations that applied in that case (as discussed at [16] of that case) also apply here.

45    Applying those principles to the circumstances of the present case, I am satisfied that it is necessary or desirable to make freezing orders as sought by ASIC for the purpose of protecting the interests of investors with potential claims. The alleged contraventions are serious in scale and nature. The affidavit evidence relied on by ASIC raises serious concerns about the potential dissipation of assets: see, eg, the inflows and outflows of bank accounts associated with Mr Selimaj set out at paragraph 22 of the Seventh Wons Affidavit.

46    To the extent that Mr Selimaj submits that he has very little in the way of assets, I do not consider this to be a reason not to make the freezing orders.

47    I therefore consider it necessary or desirable to make freezing orders as sought by ASIC for the purpose of protecting the interests of aggrieved persons as referred to in s 1323(1). As such orders are already in place, it is appropriate that they remain in place.

Receivership orders

48    I turn now to consider ASIC’s application for an order that a receiver be appointed to the property of Mr Selimaj. The orders that are sought are as follows:

Appointment of receiver

2.    Pursuant to s 1323(1)(h)(i) of the Corporations Act, Paul Anthony Allen of PKF Melbourne (Receiver) be appointed as receiver to the Property of the Third Defendant, Mr Simon Selimaj.

3    The Receiver has, in respect of the Property of the Third Defendant, the following powers:

(a)    The power to do all things necessary or convenient to be done for or in connection with, or as incidental to, the identification, preservation and securing of all the Property of the Third Defendant for the benefit of potential creditors.

(b)    Without limiting the generality of the power in the preceding sub-paragraph, the power to enter into possession and take control of the Property of the Third Defendant to the extent that the exercise of the power is reasonably necessary to achieve the purpose set out in paragraph 3(a) above.

4    The power referred to in paragraph 3 above shall not extend to the sale, letting or encumbering of the Property of the Third Defendant without prior leave of the Court or the consent of the Third Defendant.

5    The Receiver has the power to investigate and report on the following matters:

(a)    the identification of the assets and liabilities of the Third Defendant;

(b)    an opinion as to the solvency of the Third Defendant;

(c)    any information necessary to assess the financial position of the Third Defendant; and

(d)    any other matter that the Receiver considers relevant to the identification, preservation and securing of all the Property of the Third Defendant for the benefit of potential creditors,

and must, within 90 days of the date of this order, provide the Court and parties with a report as to the receivership of the Third Defendant.

6    The Plaintiff provide the Receiver with copies of such books and records relating to the Third Defendant which have been obtained by the Plaintiff under Pt 3, Div 3 of the Australian Securities and Investments Commission Act 2001 (Cth), that the Receiver reasonably requests in writing for the purpose of performing his duties.

7    The Receiver is entitled to such remuneration and expenses properly incurred in the performance of his duties and the exercise of his powers, as may be fixed by the Court on the application of the Receiver.

8    The remuneration and expenses of the Receiver shall be paid from the Property of the Third Defendant.

49    These orders are in substantially the same terms as those made previously in relation to Mr Anderson. Those orders were made by consent and therefore did not involve a ruling on any contested issues.

50    There is one preliminary matter that should be noted. Under the freezing orders that have been made, there are ‘carve outs’ for Mr Selimaj’s ordinary living expenses (up to a certain weekly limit) and for costs reasonably incurred in this proceeding (see paragraph 9(a) and (b) of the 26 June 2025 orders). The receivership orders that ASIC seeks are premised on the continuation of the freezing orders together with those carve outs. This is apparent from paragraph 9 of ASIC’s proposed orders, which proposes that paragraph 9 of the 26 June 2025 orders be varied by adding two additional carve outs. During the hearing of the present applications, ASIC confirmed that its application is put on the basis that, if the receivership orders are made, the existing carve outs would continue to operate. The effect of this is that the receiver would need to facilitate the continued operation of the carve outs. It follows that, to the extent that Mr Selimaj raised a contention that the making of the receivership orders would prevent him from applying his assets towards the costs of this proceeding, that contention is not made out.

51    There was no real issue between the parties as to the applicable principles regarding the making of a receivership order under s 1323(1). The applicable principles are set out in paragraphs 18 to 21 of ASIC’s outline of submissions. There was no issue taken with that statement of the applicable principles, and I adopt it. I discussed the applicable principles in Australian Securities and Investments Commission v Keystone Asset Management Ltd [2024] FCA 1019 (being one of the cases referred to in ASIC’s submissions) at [16]-[21]. I refer also to Australian Securities and Investments Commission v Adler [2001] NSWSC 451; 38 ACSR 266 (which is referred to in Mr Selimaj’s submissions) at [7(b)] per Santow J.

52    For the reasons given above, the jurisdictional requirement of s 1323(1)(a) is satisfied.

53    In the circumstances of the present case, I am satisfied that it is appropriate to make an order appointing a receiver to the property of Mr Selimaj.

54    Based on the evidence before the Court, the scale and nature of the possible contraventions is serious. As a director of Falcon at all relevant times, Mr Selimaj is prima facie a person who may be liable to investors in respect of possible contraventions. The appointment of a receiver would serve both a protective function, in securing his property, and an investigative function, in relation to the identification of his property. While it may be said that the freezing orders are sufficient, in the circumstances of this case I consider that the additional protection provided by the appointment of a receiver is justified.

55    In the orders sought by ASIC, it is proposed that the remuneration and expenses of the receiver be paid from the property of Mr Selimaj. During the hearing, I queried whether this order was appropriate in circumstances where the order is not based on any adverse finding against Mr Selimaj and performs a protective function for the potential benefit of aggrieved persons. In response, ASIC submitted that the position of the receiver was akin to that of a trustee, who has a right of indemnity from the trust assets. However, I think there are significant differences between the roles, making the analogy inapposite. ASIC also submitted that such a costs order is typically made in relation to a controller of property. Whether or not that is correct, in the circumstances of the present case I am not satisfied that it is appropriate for the costs order sought by ASIC to be made. This is consistent with the approach adopted by French J in Australian Securities and Investments Commission v Carey (No 5) [2006] FCA 684 at [6]-[7]. See also Australian Securities and Investments Commission v Marco (No 4) [2020] FCA 881 at [14]-[16], [25] per McKerracher J. Therefore, in relation to costs, I will order that the remuneration and expenses of the receiver be paid, in the first instance, by ASIC. I will also order that ASIC have liberty to apply for an order that it be indemnified out of the assets of Mr Selimaj for sums paid to the receiver by way of remuneration and expenses of the receivership of the property of Mr Selimaj.

56    I note for completeness that during the hearing counsel for Mr Selimaj raised the possibility of Mr Selimaj providing an undertaking to sell certain paintings, with the proceeds to be held in his solicitor’s trust account for the purpose of application towards legal costs. This is a matter that can be discussed between the parties and, if necessary, raised with the Court on a separate occasion. I do not consider the possibility of such an undertaking to affect the desirability of a receivership order.

57    I will therefore make the receivership orders sought by ASIC, save in relation to the remuneration and expenses of the receiver, which will be the subject of different orders, as set out above.

Associate:

Dated:    28 August 2025