Federal Court of Australia

Australian Securities and Investments Commission v Marco (No 21) [2026] FCA 112

ORDERS

THE COURT NOTES THAT:

A.    For the purposes of these orders and unless expressed to the contrary, capitalised terms defined in the orders made on 7 December 2020, 13 February 2023, 9 March 2023 and 2 September 2024 have the same meaning when used in these orders.

The Court Orders that:

1.    Mr Stone and Mr Franklin as the SP Receivers and SP AMS Liquidators have leave as interested persons to be heard on all issues relating to their appointment.

2.    The SP Receivers and SP AMS Liquidators be taken to be a party to the proceeding for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth).

3.    By 4.30pm (AWST) on 24 February 2026 the SP Receivers and SP AMS Liquidators serve a copy of these orders on the following other interested persons by sending it to the last known email address of that person or that person’s legal representative:

(a)    Mr Kirman and Mr Brauer as the Receivers and Liquidators.

(b)    Mr Cameron Shaw, Mr Richard Albarran and Mr Marcus Watters as former administrators and liquidators of the second defendant and third defendant.

(c)    Mr Giovanni Maurizio Carrello as trustee in bankruptcy of the first defendant.

(d)    Napoli Corporate Pty Ltd.

4.    By 4.30pm (AWST) on 3 March 2026 any interested person referred to in paragraph 3 of these orders may apply to the Court for an order varying or setting aside paragraph 2 of these orders.

5.    The operation of paragraph 2 of these orders be suspended:

(a)    if there be no compliance with paragraph 3 or an application be made in accordance with paragraph 4 of these orders, until further order of the Court; or

(b)    if there be compliance with paragraph 3 and no application be made in accordance with paragraph 4, until expiry of the period for making an application under paragraph 4 of these orders.

6.    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

FEUTRILL J:

1    By orders made on 7 December 2020 the Court appointed Mr Kirman and Mr Brauer of McGrath Nicol as liquidators of an unregistered managed investment scheme (Scheme) operated by Mr Marco (first defendant), AMS Holdings (WA) Pty Ltd (second defendant) and AMS Holdings as trustee of the AMS Holdings Trust (third defendant) and liquidators of the second and third defendants (Liquidators). The Liquidators were also appointed receivers and managers of certain property of the first, second and third defendants. Orders were also made to wind up the Scheme and the second and third defendants. The reasons for those orders were published in Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781.

2    By orders made on 2 September 2024 the Court appointed Mr Stone and Mr Franklin of PKF Melbourne as special purpose receivers and managers of property of the Scheme (SP Receivers) and special purpose liquidators of the second defendant (SP AMS Liquidators) for the purpose of investigating, commencing, continuing and otherwise pursuing or taking steps to pursue certain claims against Westpac Banking Corporation and other persons described in the orders (Special Purpose). The reasons for those orders were published in Australian Securities and Investments Commission v Marco (No 16) (Special Purpose Appointment) [2024] FCA 1000.

3    The SP Receivers and SP AMS Liquidators (applicants) apply for orders granting them leave to be heard in the proceeding on all issues relating to their appointment. They also seek an order that they be treated as a party for the purpose of r 2.32 of the Federal Court Rules 2011 (Cth). If treated as a party for the purpose of that rule, in general, they would be permitted to inspect any documents on the Court file.

4    The applicants served a copy of their interlocutory application and affidavit in support on the Liquidators and the parties to the proceeding, and a number of other persons with interests in the proceeding. The plaintiff (ASIC), first defendant (Mr Marco) and second and third defendants (AMS Holdings), fourth defendant and sixth defendant consent to the proposed orders. The fifth defendant neither consents nor opposes the proposed orders.

5    Rule 2.13 of the Federal Court (Corporations) Rules 2000 (Cth) provides that the Court may grant leave to any person who is, or who claims to be, an interested person to be heard in the proceeding without becoming a party to the proceeding. Although no specific orders were made, a number of persons with an interest in the proceeding have been given leave to be heard on issues in the proceeding or have been afforded an opportunity to be heard on issues in the proceeding. These interested persons have filed (or may have filed) documents in the proceeding. The extent to which those persons were given notice of the interlocutory application and (or) want to be heard on it is not completely addressed in the affidavit evidence filed in support of the proposed orders. However, interested persons who have participated in the proceeding and filed affidavits and other documents may want to be heard on the extent to which the applicants should be treated as a party to the proceedings and, thereby, have a right to inspect the documents the interested persons have filed.

6    Before the orders were made on 7 December 2020 appointing the Liquidators, on 27 May 2020, the Court made orders appointing them interim receivers of certain property. From the time of that appointment, the Liquidators have been treated as interested persons with leave to be heard in the proceeding on any issues relating to their appointments as interim receivers, receivers and managers and liquidators. The Liquidators have also been granted general liberty to apply for orders and directions relating to their appointment. The Liquidators are also in control of the second and third defendants. In that capacity, the Liquidators caused those defendants to consent to the proposed orders. However, the attitude of the Liquidators, as receivers and managers and liquidators and interested persons in their own right, towards the proposed orders is not specifically addressed in the evidence.

7    Mr Shaw, Mr Albarran and Mr Watters have also been treated as interested persons and given leave to be heard on issues in the proceeding. They were appointed as administrators and later liquidators of the second and third defendants. They were removed as liquidators by the orders made on 7 December 2020 appointing the Liquidators. Their primary interest in the proceeding now relates to their remuneration and payment of costs and expenses incurred in the period during which they were administrators and liquidators. Various orders have been made after contested hearings involving the Liquidators and the former administrators and liquidators: Australian Securities and Investments Commission v Marco (No 9) [2021] FCA 1306 and Australian Securities and Investments Commission v Marco (No 15) [2024] FCA 347. The former administrators and liquidators have filed a number of affidavits and other documents in the proceeding. Their attitude towards the proposed orders is also not addressed in the evidence in support of the application.

8    Mr Giovanni Maurizio Carrello as trustee in bankruptcy of Mr Marco (first defendant) has been treated as an interested person and has been given leave to be heard on issues in the proceeding. His attitude towards the proposed orders is not addressed in the evidence in support of the application.

9    Ms Patricia Maree Markopoulos and Tonpose Pty Ltd as trustee for the Marks Autos Superannuation Fund are recorded in certain orders of the Court as interested persons. They filed and later withdrew a notice of intention to be heard in early 2022. They have continued receiving correspondence from the Court as if they were an interested party and have requested that they no longer be included in communications from the Court. In point of detail, they have not been given leave to be heard in the proceeding and are not interested persons for the purposes of r 2.13 of the Corporations Rules.

10    Napoli Corporate Pty Ltd is an interested person and was granted leave to be heard on the issue of the appointment of the SP Receivers and SP AMS Liquidators. It made the interlocutory application that resulted in those appointments. It filed affidavits and other documents in support of that application. Although it may be assumed to support the proposed orders, its specific attitude towards the application is not addressed in the evidence.

11    Notwithstanding the absence of evidence of notice of the application and proposed orders to interested persons and (or) of the attitude of interested persons towards the application, having regard to the consent or non-opposition of the parties to the proceeding, I am satisfied that the interlocutory application can be dealt with without an oral hearing under s 20A of the Federal Court of Australia Act 1976 (Cth).

12    By paragraph 23 of the orders appointing the applicants special purpose receivers and liquidators made on 2 September 2024 they were granted liberty to apply for further or other orders or directions. There is no doubt that the applicants have sufficient interest to be granted leave to be heard on any issue relating to their appointment. An order should be made under r 2.13 of the Corporations Rules granting the applicants leave to be heard in the proceeding on all issues relating to their appointment. The only question is whether, notwithstanding that they are not to be joined as a party, they should be entitled to the right of a party to inspect documents on the Court file.

13    By paragraph 9 of the orders made on 2 September 2024 the Liquidators were directed to provide such assistance, documents and information as is reasonably required by the applicants to pursue and achieve the Special Purpose. As already mentioned, the Liquidators, as controllers of AMS Holdings which is a party, may be able to provide the applicants with documents filed in this proceeding for that purpose. However, while the applicants were appointed special purpose receivers and liquidators for the Special Purpose in this proceeding, it does not necessarily follow that the Liquidators could provide the applicants with documents filed in this proceeding that have not been received in evidence or otherwise made public without obtaining a release from the ‘implied undertaking’ not to use documents of that nature for a collateral purpose: see, e.g., Hearne v Street [2008] HCA 36; 235 CLR 125 at [96]-[97], [105]-[112] (Hayne, Heydon and Crennan JJ). There would also be an inevitable cost and inefficiency of ‘double handling’ if the applicants were required to request the Liquidators to provide them with documents that they could inspect directly if they were treated as a party to the proceeding for that purpose.

14    The applicants have commenced proceedings in the Supreme Court of New South Wales in pursuit of the Special Purpose. It is evident that the principal reason for seeking an order to treat the applicants as a party to the proceedings for the purposes of r 2.32 of the Rules is to enable them to inspect documents that may provide information that will assist them in the prosecution of the proceeding in New South Wales. Having regard to the purpose for which the applicants were appointed, to the extent that affidavits filed in this proceeding have been ‘read’ and received in evidence or other documents have been read or relied upon in open court there is no evident reason for refusing to permit the applicants to inspect documents of that character on the ground that they are not a party to the proceeding. However, documents that have not been received in evidence or referred to in open court and that are otherwise not generally available to a person who is not a party to the proceeding fall into a different category. Nonetheless, to give effect to leave granted to an interested person to be heard in a proceeding it may be necessary to permit that person to inspect documents filed in the proceeding.

15    By virtue of the nature of their appointment and the Special Purpose it is appropriate that the applicants be treated as persons with a sufficient interest to be served with documents filed in the proceeding that relate to the Special Purpose. Further, to give effect to the grant of leave to be heard on all issues relating to their appointment, it is appropriate that the applicants be entitled to inspect documents on the Court file as if they were a party to the proceeding. If and the extent to which documents inspected may be used for a purpose other than giving effect to their right to be heard in this proceeding will be a matter for the applicants to determine. If necessary, they may apply for a release from the implied undertaking to use the documents or information contained in them for another purpose.

16    As the evidence filed in support of the proposed orders is insufficient to demonstrate that notice was given to all interested persons who have filed documents in the proceeding and who may want to be heard on the question of the applicants’ entitlement to inspect those documents, there will be an order requiring the applicants to serve a copy of the orders on the interested persons, those persons will have liberty to apply to vary or set aside the order, and the order permitting the applicants to inspect documents on the Court file will not take effect unless and until notice has been given and any interested person who wants to vary or set aside the order has been heard.

17    Separately, the fourth, fifth and sixth defendants expressed a desire in their communications with the applicants that the Court excuse them from further active involvement in the proceeding until further order. For the reasons that follow, I am not prepared to make an order or direction to that effect.

18    In November 2021 the Liquidators applied for certain orders and directions relating to the winding up of the Scheme and distribution of the proceeds of property of the Scheme. Three members of the Scheme (fourth, fifth and sixth defendants) were joined as defendants for the purposes of that application to represent the interests of different classes of Scheme members and to make submissions regarding the appropriate manner in which to distribute the proceeds of realisation of the remaining Scheme property between Scheme members. The Court made orders on that application on 13 February 2023 (later amended on 20 December 2024) and 9 March 2023 for reasons published on 13 February 2023: Australian Securities and Investments Commission v Marco (No 13) [2023] FCA 83. The Court made subsequent orders, on the Liquidators’ application, on 6 February 2026 for reasons published on 9 February 2026: Australian Securities and Investments Commission v Marco (No 20) [2026] FCA 67. None of the fourth, fifth or sixth defendants participated in the subsequent application and hearing.

19    The fourth, fifth and sixth defendants were joined as parties to the proceeding by orders of the Court made on 10 December 2021 and 6 January 2022. Each of those defendants filed a notice of appearance with an address for service. In November 2025 the legal representatives of the sixth defendant filed a notice of ceasing to act and provided the last known address of the sixth defendant. Unlike other interested parties, the fourth, fifth and sixth defendants were not granted leave to be heard in the proceeding without making them a party to the proceeding. Amongst other things, the orders joining them as parties made provision for the payment of their costs and for them to represent other Scheme members with like interests.

20    The Rules require service of documents filed in the proceeding on parties to the proceeding. It is appropriate that parties to the proceeding be given notice of case management and other hearings listed in the proceeding. It is a matter for each party to determine whether that party wants to participate in any future applications or hearings based upon the nature of those applications and hearings. Alternatively, it is a matter for each party to apply to the Court for a specific order of some kind that will excuse that party from further active participation in the proceeding or from participation in the proceeding other than applications or hearings of a certain and identified character. It is not for the Court or other parties or interested persons to decide on a case-by-case basis if one or more of the other parties should or should not be served with Court documents or should or should not participate in future applications or hearings.

21    While the fourth, fifth and sixth defendants requested the applicants inform the Court of their desire not to participate actively in the proceeding until further order, none of the relevant defendants has made an application to the Court. If any party wants to be excused from further active participation in the proceeding that party should apply to the Court for appropriate orders to remove the party or to require its participation in only clear and specifically defined circumstances.

Associate:

Dated:    17 February 2026

SCHEDULE OF PARTIES