Federal Court of Australia

Stone (Receiver), in the matter of AMS Holdings (WA) Pty Ltd [2025] FCA 1081

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 596B and s 596D of the Corporations Act 2001 (Cth), a summons returnable on a date and time convenient to the Court be issued to Mr Robert Hill to attend for examination and production of documents in relation to the examinable affairs of AMS and the Scheme in the form annexed hereto marked 'Attachment A' (Summons).

2. Pursuant to s 597(9) of the Corporations Act, Westpac Banking Corporation Limited (ACN 007 457 141) produce to the Court at the examination of Mr Hill the books referred to in 'Attachment B' to this order.

3. Pursuant to s 596C of the Corporations Act, the affidavit of Jason Glenn Stone sworn on 20 August 2025 in support of this interlocutory process, is not to be made available for inspection by any person, unless otherwise ordered by the Court.

4. The costs of and incidental to this application be reserved.

5. On the basis that a redacted version will be provided after the hearing which is in a form that can be made available for inspection on the Court file, the plaintiffs' confidential submissions dated 1 September 2025 are not to be made available for inspection by any person unless otherwise ordered by the Court.

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

Attachment A

Form 17    Summons for examination

(rule 11.3)

No. WAD 387 of 2024

Federal Court of Australia

District Registry: Perth

Division: General

IN THE MATTER OF: AMS HOLDINGS (WA) PTY LTD ACN 164 700 485 (RECEIVERS AND MANAGER APPOINTED) (IN LIQ)) AND IN THE MATTER OF AN UNREGISTERED MANAGED INVESTMENT SCHEME AS DEFINED IN THE ORDERS OF MCKERRACHER J MADE 7 DECEMBER 2020 AS VARIED BY ORDERS OF FEUTRILL J ON 13 FEBRUARY 2023 IN ACTION WAD 481 OF 2018

JASON STONE AND GLENN FRANKLIN in their capacities as the joint and several special purpose receivers and managers of the property of the unregistered managed investment scheme formerly operated by Chris Marco and as joint and several special purpose liquidators of AMS Holdings (WA) Pty Ltd ACN 164 700 485 (Administrators Appointed) (Receivers and Managers appointed) (In Liq)

Plaintiffs

A. DETAILS OF SUMMONS

TO: Rob Hill

Westpac Banking Corporation

Level 18, 275 Kent Street

Sydney NSW 2000

You are summoned under section 596B of the Corporations Act 2001 (Cth) (Corporations Act) to:

(a) attend before the Federal Court of Australia, WA District Registry, 1 Victoria Avenue, Perth WA 6000 at [to be inserted] on [to be inserted] 2025, and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of the Scheme (meaning the managed investment scheme defined by the orders of the Honourable Justice McKerracher made on 7 December 2020 and subsequently varied by the Honourable Justice Feutrill in Federal Court of Australia Proceeding 481 of 2018) and AMS Holdings (WA) Pty Ltd (ACN 164 700 485) (Administrators Appointed) (Receivers and Managers Appointed) (In Liq).

Date:

. . . . . . . . . . . . . . . . . . . . .

Registrar

B. NOTICE TO PERSON TO BE EXAMINED

The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you.

If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice.

This summons is issued at the request of Jason Glenn Stone and Glenn Jeffrey Franklin in their capacity as joint and several special purpose receivers and managers of the property of the unregistered managed investment scheme formerly operated by Chris Marco and the joint and several special purpose liquidators of AMS Holdings (WA) Pty Ltd (ACN 164 700 485) (Administrators Appointed) (Receivers and Managers Appointed) (In Liq), whose address for service is c/- HFW Australia, Level 39, Bourke Place, 600 Bourke Street, Melbourne VIC 3000.

Attachment B – Westpac Banking Corporation

In this Attachment, the following terms have the following meanings:

1. AFSL means "Australian financial services licence", as defined in section 9 of the Corporations Act 2001 (Cth) (Act).

2. AMS means AMS Holdings (WA) Pty Ltd (ACN 164 700 485) (Administrators Appointed) (Receivers and Managers Appointed) (In Liq).

3. Books means all documents in your possession, custody or control, including all files, Correspondence, memoranda (including credit memorandums and/or credit applications), notes, file notes, diary notes, letters, working papers, emails, text messages, instant messages, contracts, agreements, finance agreements, reports, application forms, journals, security and charge documents, settlement statements, drawings, maps, plans, photographs, rental statements, receipts, quotations, invoices, deeds, records kept within Westpac's internal systems, however compiled, recorded or stored and whether in physical or electronic form.

4. Coastline Group means the business name used by Chris Marco (as defined by McKerracher J in Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719 at [41]).

5. Correspondence means any written communication (however stored) and includes any written communication sent by electronic means (such as email or instant message) and any written record of any oral or otherwise unwritten communication.

6. Facilities means a loan facility, line of credit facility and any other credit facility (or any of them), and includes any security obtained or provided in support of a credit facility.

7. Employee Details means the employee's position(s), duties and contact details (residential address, home and mobile phone numbers and personal email).

8. Financial Records means, in respect of the Marco Group, financial statements, statements of financial position (assets and liabilities and income and expenses), management accounts (balance sheets and profit and loss accounts), financial forecasts (profit and loss, cash flow and balance sheet), tax returns, ATO Integrated Client Account Statements and Notices of Income Tax Assessment).

9. Marco Group means Chris Marco, Coastline Group and AMS (or any of them).

10. Relevant Period means 1 January 2002 to 31 December 2012.

11. Scheme means the unregistered managed investment scheme, as defined in the orders of the Honourable Justice McKerracher made on 7 December 2020 and subsequently varied by the Honourable Justice Feutrill on 13 February 2023 in proceeding WAD 481 of 2018.

12. Westpac means Westpac Banking Corporation Limited (ACN 007 457 141).

13. Westpac Accounts means any of the following accounts, and any other Westpac accounts of the Marco Group operated during the Relevant Period:

Books to be produced pursuant to the Summons are all Books dated, created, sent or received as follows:

1. Westpac policies and procedures (including variations of them) that were applicable to the operation of the Westpac Accounts and the Facilities provided to the Marco Group during the Relevant Period, including policies and procedures relating to:

a. "Know Your Client" (KYC) obligations (including requirements as to the verification of customers' business and personal sources of income);

b. reporting to external agencies;

c. facilitating and processing overseas and foreign currency electronic funds transfers;

d. the opening, maintaining and closing of Westpac Accounts;

e. customer account management, including excesses on agreed facility limits;

f. providing bank reference and/or credit reference letters and/or customer account balance confirmations; and

g. approving increases to daily account limits.

2. Books recording correspondence between Westpac and any of AMS, Chris Marco, or Coastline Group, including persons in their employ during the Relevant Period, in relation to:

a. the business of Coastline Group;

b. all requests for new facilities (including all loans) that were received by Westpac in respect of the Marco Group (or any of them);

c. the financial performance and position of Coastline Group;

d. the conduct of the Westpac Accounts;

e. any excesses transacted on the Westpac Accounts, in particular, when any of the Westpac Accounts exceeded their agreed facility limits;

f. transactions processed through the Westpac Accounts;

g. reasons for any change in the Westpac staff responsible for the management and/or oversight of the Westpac Accounts; and

h. requests for bank reference letters and/or credit reference letters and/or account balance confirmations and/or increases in the daily limits of the Westpac Accounts.

3. Financial Records of the Marco Group as defined and documents of Westpac recording information sought from them during the Relevant Period.

4. Books recording or evidencing meetings between Westpac personnel and Mr Marco and/or persons in his employ or engaged by him during the Relevant Period.

5. Books recording or evidencing any investigations or enquiries by Westpac during the Relevant Period into:

a. the investing activities of the Marco Group;

b. the value of investments held by the Marco Group;

c. how the Coastline Group and/or AMS were funded;

d. whether the Marco Group was required to hold an AFSL; and/or

e. the overdrawing of the Westpac Accounts.

6. Books recording or evidencing letters of offer in respect of any Facilities provided by Westpac to any of Chris Marco, Coastline Group or AMS during the Relevant Period.

7. Books recording or evidencing portfolio reviews undertaken in respect of the portfolios managed by the Westpac staff who had day-to-day management and/or overview and control of the Marco Group's Westpac Accounts and the Facilities provided to the Marco Group in the Relevant Period.

8. Books recording Employee Details of Greg Mitchell in the period 1 January 2014 to 31 December 2016.

9. Books in the period August 2017 to 31 December 2019 recording or evidencing Westpac’s internal enquiries and responses to production notices served by ASIC on Westpac pursuant to section 30 Australian Securities and Investments Commissions Act 2001 (Cth) dated:

a. 28 August 2017;

b. 20 January 2018;

c. 10 April 2018;

d. 23 October 2018;

e. 16 November 2018;

f. 6 February 2019;

g. 18 July 2019;

h. 18 July 2019;

i. 12 September 2019; and

j. 4 December 2019.

REASONS FOR JUDGMENT

(Revised from the transcript)

COLVIN J:

1 The plaintiffs seek orders pursuant to s 596B and s 596D of the Corporations Act 2001 (Cth) for a summons for examination and production of documents to issue.  I have had regard to the matters deposed in the confidential affidavit of Mr Jason Stone in support of the interlocutory process and the matters raised in the plaintiffs' confidential written submissions.

2 I am satisfied that the plaintiffs are eligible applicants for the orders sought, as special purpose liquidators, and also pursuant to the orders of Feutrill J made on 2 September 2024 in related proceedings.  I am satisfied that the orders are sought for a proper purpose, as disclosed by the terms of the confidential affidavit in support of the application of Mr Stone dated 20 August 2025.  I take into account the updated circumstances provided to me today in relation to the conduct of the proceedings in the Supreme Court of New South Wales referred to in that affidavit, to the effect that those proceedings have now been served, and they are at a stage where a defence is to be filed and there have been no orders for discovery or provision of evidence, so those proceedings remain at an early stage.

3 Whether the application might be refused as oppressive in circumstances where summonses have been ordered previously, most of the documents sought relate to a different period to the summonses that have previously been issued in relation to the administrations being conducted and therefore deal with matters that are not overlapping as to that extent.  The exceptions are in respect of two categories of documents sought, firstly, in relation to employee records of a Mr Mitchell (category 8); and secondly, documents sought in respect of Westpac's internal inquiries and responses to notices issued by the Australian Securities and Investments Commission (category 9).  Neither of those categories were covered by the summonses previously issued.  On the affidavit material, I am satisfied that there is a proper basis for seeking the employee details of Mr Mitchell.

4 Finally, I note that in relation to category 1 of the proposed summons, the order sought might be thought to embrace a very considerable category of policies and procedures, because it is expressed in terms that seek those policies and procedures applicable in any way to the accounts and facilities identified.  In my view, as to that category, the orders made should speak to policies and procedures that were applicable to the operation of those accounts and facilities.  Subject to that matter, there should be the following orders.

5 Firstly, an order in terms of paragraph 1 of the minute of proposed orders, save that it should provide for the addition of the words 'operation of the' after the words 'applicable to the' in paragraph 1 of the books to be produced.  An order in terms of paragraph 2 of the proposed orders.  As to paragraph 3, noting that s 596C operates to require that documents are not made available for inspection, I will make an order to the following effect so that that is clear and apparent on the Court file:  pursuant to s 596C of the Corporations Act, the affidavit of Jason Glenn Stone sworn on 20 August 2025 in support of this interlocutory process is not to be made available for inspection by any person unless otherwise ordered by the Court.  I will make a further order that the costs of and incidental to this application be reserved.

6 On the basis that a redacted version is provided that is available for inspection, I also will make a further order that the plaintiffs' confidential submissions dated 1 September 2025 are not to be made available for inspection by any person unless otherwise ordered by the Court.

Associate:

Dated:    8 September 2025