FEDERAL COURT OF AUSTRALIA

Fortrend Securities Pty Ltd v Wollermann (Stay Application) [2026] FCA 660

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 1 May 2026 in respect of orders in VID 38 of 2023 (the interlocutory application) be dismissed.

2.    The applicants in the interlocutory application pay the costs of the respondents to that application.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 1 May 2026 in respect of orders in VID 209 of 2024 (the interlocutory application) be dismissed.

2.    The applicants in the interlocutory application pay the costs of the respondents to that application.

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)

DOWLING J

1    Before the Court are two interlocutory applications seeking the stay of orders of the Court pending the determination of two appeals by the Full Court. The appeals have been heard and are reserved.

2    In the first interlocutory application the applicants for the stay, Fortrend Securities Pty Ltd (FSA) and Fortrend Securities Inc (FSI), seek to stay orders made in proceeding VID38 of 2023 (the Primary Proceeding) that they pay the costs of the respondents in that proceeding.

3    In the second interlocutory application the applicants for the stay, FSA and Mr Joseph Forster, seek to stay orders made in proceeding VID209 of 2024 (the Fair Work Proceeding) that they pay compensation and penalties to the respondents for breaches of the Fair Work Act 2009 (Cth).

4    The applicants say that if a stay is not granted, and FSA and FSI are required to pay the amounts due under the orders, they will be wound up and cease to exist and the appeals would be rendered nugatory.

5    The respondents say, amongst other matters, that the applicants have not demonstrated an appropriate case for a stay but have left the situation in a state of speculation, and weight must be given to the fact that judgment was made in their favour.

6    For the reasons explained below, both interlocutory applications are dismissed.

BACKGROUND CIRCUMSTANCES

7    On 21 February 2025, O’Callaghan J delivered reasons for judgment in the Primary Proceeding and the Fair Work Proceeding.

8    On 21 March 2025, FSA and FSI filed a Notice of Appeal from the orders giving effect to judgment in the Primary Proceeding (the Primary Judgment Orders). They did not, at that time, seek a stay of the Primary Judgment Orders.

9    On 6 May 2025, FSA and Mr Forster were ordered to pay compensation and penalties for contraventions of the Act in the Fair Work Proceeding (the Compensation and Penalty Orders) totalling $621,369.38. Of the orders the subject of the applications for a stay, only two are relevantly directed to Mr Forster. They require Mr Forster to pay penalties totalling $5,328. The balance are orders for compensation and penalties directed to FSA. At the hearing of the interlocutory applications the applicants advised that they no longer pressed the stay in respect of the two orders directed to Mr Forster.

10    Also on 6 May 2025, FSA and FSI were ordered to pay the respondents’ costs of the Primary Proceeding (the Costs Orders). FSA and FSI are jointly and severally liable for that order.

11    On 3 June 2025, the applicants filed a Notice of Appeal from the Compensation and Penalty Orders. They did not, at that time, seek a stay of the Compensation and Penalty Orders or appeal from the Costs Orders.

12    On 27 August 2025, Registrar Legge made an order that the amount of the respondents’ costs of the Primary Proceeding ordered by O’Callaghan J be fixed in the sum of $2,023,140.76. Again, no appeal or stay was sought of that order at that time.

13    On 7 November 2025, an Amended Notice of Appeal from the Primary Proceeding was filed. That notice did not appeal from the Costs Orders or the order fixing those costs. It did, however, amend the relief sought to include, the “costs of the trial before O’Callaghan J be reserved for determination at the rehearing”.

14    Each of the orders for which a stay is sought, and to whom that order is directed, is set out in an appendix to these reasons.

15    Since the making of the Compensation and Penalty Orders and the Costs Orders the respondents have taken various steps in relation to those orders. First, they issued statutory demands in respect of the judgment debts. Second, they successfully resisted proceedings commenced by FSA to set aside the statutory demands. Third, they commenced winding up proceedings in this Court in respect of the unsatisfied statutory demands. The respondents rely on an affidavit of Mr Henry Skene sworn 15 May 2026 (Skene Affidavit) that provides that the respondents’ legal costs for those steps was approximately $139,257.75 (excluding GST).

STAY PRINCIPLES

16    Principles relevant to the grant of a stay were set out in National Retail Association v Fair Work Commission (No 2) [2014] FCA 664 at [11] (Collier J), and applied in Quach v MLC Ltd [2022] FCAFC 202 at [81]-[82] (Collier, Perry and Thomas JJ). The principles may be summarised as follows:

(1)    an order granting a stay is an interlocutory order at the discretion of the primary judge, although the discretion must be exercised judicially;

(2)    the discretion of the Court in granting a stay ought not be exercised lightly, and only in circumstances where there would be so adverse and serious a consequence that interlocutory intervention should take place notwithstanding that there has not been an opportunity for full consideration of the appeal. Circumstances warranting the grant of a stay have been described as “exceptional”;

(3)    to that extent the balance of convenience plays an important role in determining whether an order ought to be made;

(4)    the Court may be minded to refuse a stay where it is satisfied that there are no serious questions for the determination in the appeal or review. Conversely, the Court may be minded to grant a stay where, on a preliminary assessment of the case, the Court is satisfied that grounds of appeal or review have merit;

(5)    the Court may be minded to grant a stay where it is satisfied that any subsequent appeal or review would be rendered nugatory should a stay be refused;

(6)    decisions at first instance should not be treated as merely provisional. A successful party in litigation is entitled to the fruits of its judgment, and courts should not be disposed to delay the enforcement of orders. A sufficient basis must be shown to outweigh these considerations; and

(7)    the Court will consider whether a stay is warranted in the interests of justice.

17    Whilst there was some disagreement between the parties as to the need for exceptional circumstances, that is not material in the present applications.

18    In Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175 at [12]-[13], Abraham J said in respect of a stay under r 36.08 of the Federal Court Rules 2011 (Cth) that the successful party at first instance is entitled to presume that the judgment appealed from is correct. Her Honour said that the party seeking the order bears the onus of demonstrating a proper basis for a stay and must demonstrate that there is a real risk that it will suffer prejudice or damage if a stay is not granted which will not be redressed by a successful appeal. Her Honour considered this requirement will be satisfied if a successful appeal will be rendered nugatory unless a stay is granted. While these statements were made in respect of r 36.08, I consider they are also relevant principles to the question of a stay in the present application sought pursuant to r 41.11.

19    Consistent with the above, the applicants’ case is that it has demonstrated that there is a real risk that it will suffer prejudice or damage if a stay is not granted which will not be redressed by a successful appeal. They say both FSA and FSI will be wound up and cease to exist. In that sense, an appeal would be rendered nugatory if a stay were refused.

20    In Aqua Star Pty Ltd v CP Aquaculture (India) Pvt Ltd [2024] VSCA 67 at [9], Kennedy JA (with whom Walker JA agreed), citing Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 at 655 (Young CJ, with whom Brooking J agreed), said that “where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party”. This, the respondents say, is the situation presently before the Court.

THE MATERIAL RELIED ON BY THE PARTIES

21    The applicants relied on the affidavits of Mr Forster dated 1 May 2026 (Forster Affidavit) and their written submissions. The affidavits of Mr Forster were filed in both interlocutory applications in the same form.

22    The respondents relied on the Skene Affidavit and their written submissions.

What financial material was filed on behalf of FSI?

23    In respect of FSI, the Forster Affidavit relevantly sets out that:

(a)    Mr Forster is the President and owner of FSI;

(b)    FSI is a US regulated stockbroker, is a member of the Financial Industry Regulatory Authority and the Securities Investor Protection Corporation and is registered with the U.S. Securities and Exchange Commission;

(c)    FSA introduces Australian clients and collects client data and information to provide to FSI, which provides that information to a US-based clearing firm to provide clearing services for trading;

(d)    FSA and FSI earn revenue from fees charged to clients, which are either commission on trades or flat fees;

(e)    FSI’s sole business purpose is to act as a conduit for FSA to access US markets; and

(f)    if FSA is placed into liquidation, FSI will not generate revenue and its business will cease to exist.

24    Despite Mr Forster being the President and owner of FSI, the Forster Affidavit does not set out any information about FSI’s financial position, nor its capacity to meet the Costs Orders for which it is jointly and severally liable.

25    The applicants submit:

(a)    [FSA’s] “counterpart in the United States, FSI, will also be negatively affected and will also likely be wound up and cease to exist”;

(b)    the commercial damage to FSA and FSI “would be irreversible”;

(c)    the “practical effect of permitting immediate enforcement of the respondents’ costs judgment” … “is the destruction of FSA and FSI’s businesses prior to determination of the appeal”.

26    There was not sufficient material before me from which I can be satisfied that FSI will suffer irreversible damage or that its business will be destroyed. Absent this material, the situation is fairly described as a “state of speculation or of mere argument” with respect to FSI: see Aqua Star at [9] (Kennedy JA, with whom Walker JA agreed). This weighs heavily against the granting of a stay in favour of FSI.

What financial material was filed on behalf of Mr Forster?

27    As explained, the interlocutory applications are supported by the Forster Affidavit. The affidavit does not disclose Mr Forster’s personal financial circumstances. Whilst the applicants no longer press for a stay of the orders directed to Mr Forster, the respondents complain that Mr Forster’s financial circumstances are still relevant, including because he is the owner of FSI. Whilst I accept that information might be relevant, I do not give any significant weight to the applicants’ failure to provide personal financial information about Mr Forster.

What financial material was filed on behalf of FSA?

28    In the Forster Affidavit, Mr Forster deposes that “FSA does not presently have the capacity to pay over $2 million into Court. Requiring it to do so would exhaust its working capital”. The material that is provided in support of that assertion is FSA’s Tax Return for FY2024, the Balance Sheet as at 31 December 2025, and the Profit and Loss Statement for the six months ending 31 December 2025. I make the following observations about that material and the Forster Affidavit with respect to FSA’s financial position.

29    First, Mr Forster explains that FSA is 100% owned by Winter Holdings Inc, an American company. The applicants have not put on any meaningful financial information before me about Winter Holdings.

30    In March 2026, O’Bryan J considered the ownership of FSA in proceedings between FSA and Mr Wollermann, the first respondent to the present interlocutory application. At [49] of Fortrend Securities Pty Ltd v Wollermann [2026] FCA 290, his Honour relevantly found:

In his second affidavit, Mr Forster revealed that Fortrend was wholly owned by an American company called Windsor Holdings Inc. No financial information was provided with respect to that company, or any aspect of its financial relationship with Fortrend. Mr Forster provided no information with respect to the current financial position of Fortrend, and merely stated that Fortrend “does not at present have finance facilities that would allow it to draw down the amounts” the subject of the Registrar’s orders. The statement is wholly uninformative as to the ability of Fortrend to satisfy with the condition imposed by the Registrar’s orders. I consider that Fortrend has chosen not to disclose its true financial position to the Court. As a result, I place no weight on its submissions with respect to its ability to satisfy the condition imposed by the Registrar’s orders.

31    For completeness, I note that the applicants confirmed at the hearing that the relevant name of the owner of FSA is “Winter Holdings Inc”, and the reference to “Windsor Holdings Inc” in O’Bryan J’s decision is a typographical error.

32    O’Bryan J’s decision was published on 19 March 2026. FSA has had the benefit of that decision in preparing its evidence in the present matter. Having had that benefit, FSA has again chosen to not disclose any information about Winter Holdings.

33    Second, as explained above, there is no financial information about FSI. If FSI was able to pay the amounts required pursuant to the orders, there would be no effect on FSA because FSI and FSA are jointly and severally liable for the orders. There is no sufficient material to identify what obligations, if any, FSI has to FSA. There is no documentation to properly explain any financial obligation that FSI has to FSA.

34    Third and relatedly, the financial information before me about FSA indicates that there has been a significant reduction to its commissions between 2022 to 2025. The Forster Affidavit deposes that as at June 2022, FSA had about US$150 million in assets under management. It says further that currently, FSA has about US$160 million in assets under management. FSA’s Financial Report for the year ending 30 June 2022 recorded that FSA received AU$3,190,457 in commissions. However, the Profit and Loss Statement for the six months ending 31 December 2025 records that FSA only generated AU$801,366.37 in commissions for this period.

35    The respondents submitted that in the primary proceeding, Mr Forster gave evidence that FSI collects commissions and remits them to FSA pursuant to an agreement between FSA and FSI. They submit that, in circumstances where Mr Forster controls both companies, the reduction in FSA’s commissions may be because FSI now retains more of the commissions earned by the group.

36    The Forster Affidavit deposes that the process by which FSA earns revenue from commission-based clients is through a process where a client instructs FSA to place a trade on its behalf, the trade is placed on StoneX, a USA-based clearing firm, by an FSA adviser (via FSI). StoneX charges the client a commission on the trade of up to 3%, and remits to FSI those commissions (less StoneX’s brokerage fees). FSI then remits part of the net commission to FSA. The affidavit continues that “pursuant to an agreement between FSA and FSI, FSI pays to FSA 80% on the first $1 million of gross commission and fees earned (after deducting StoneX charges), and 98% thereafter, on a monthly basis”. The applicant did not produce that agreement between FSI and FSA in its interlocutory applications. I am unable to ascertain whether FSI is obliged to pay FSA on a monthly basis, and the extent to which Mr Forster, as the owner of FSI and FSA, could vary the agreement such that, for example, FSI might be able to withhold payment of commission to FSA or artificially deflate the commission received by FSA.

37    These matters weigh against the granting of a stay.

HAVE THE APPLICANTS SHOWN THE APPEAL WOULD BE NUGATORY?

38    Where no financial information was provided on behalf of FSI, I am not satisfied that FSI is not able to pay the Costs Orders directed to it, or that the appeals would be rendered nugatory as a result of its obligation to do so.

39    As to FSA, the question is whether the applicants have made sufficient disclosure of its financial position such that I can be satisfied that the appeals would be rendered nugatory. That is, whether they have satisfied me that the appeals would be rendered nugatory because absent a stay, FSA would be “wound up and cease to exist”.

40    I accept that it is not appropriate for this Court to undertake an “inquiry” into the financial circumstances of FSA: see Aqua Star at [27] (Kennedy JA, with whom Walker JA agreed). However, as explained above, there are a number of critical matters which called for an explanation. First, the lack of any financial information provided with respect to Winter Holdings, or any aspect of its financial relationship with Fortrend. This especially called for an explanation where it was raised by O’Bryan J in March this year as explained above. Second, the lack of any detail of the financial relationship between FSA and FSI, where there is also no information at all about FSI’s financial position. Third, the lack of any detailed information about the commission payments and obligations from FSI to FSA. In the words of Aqua Star, the applicants’ failure to deal with these critical matters left the situation in a “state of speculation” such that the respondents should have the benefit of the orders entered in its favour.

41    In Wooldridge v Australian Securities and Investments Commission [2015] FCA 349; 106 ACSR 551 at [11] Middleton J observed that “a first instance decision is not, and should not be treated as, a provisional decision … There is a prima facie assumption that the judgment the subject of the appeal is correct. The Court should not deprive a person of the fruits of victory by granting a stay unless the circumstances warrant the Court’s intervention.”

42    Further, in Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd (No 2) [2020] FCA 351 at [55] O’Bryan J said that the party against whom stay orders were sought:

did not initiate this litigation but was required to defend its position in court incurring very substantial costs. Having successfully defended the proceedings, it is entitled to its costs. In my view, there is particular unfairness if the Court were to stay an order awarding costs to a successful respondent: the principle that there is a prima facie assumption that the judgment the subject of the appeal is correct and that the court should not deprive a person of the fruits of victory applies with even greater force in such circumstances.

43    Those circumstances apply to the respondents in respect of the Primary Proceeding.

44    I am not satisfied, on the financial information referred to above, and for the reasons explained above, that both FSI and FSA would be unable to pay the orders directed to them such that both FSA and FSI will be wound up and cease to exist. Therefore, I am not satisfied that, absent a stay, the appeals would be nugatory.

WILL THE RESPONDENTS SUFFER PREJUDICE FROM A STAY?

45    In addition to those matters, the applicants have not explained their delay in applying for a stay of the Compensation and Penalty Orders and the Costs Orders.

46    The applicants have been on notice for approximately six months that, absent a stay, the judgment debts the subject of the Compensation and Penalty Orders and the Costs Orders were due and payable.

47    On 10 October 2025, the respondents stated in correspondence in relation to the applicants’ application to set aside the statutory demands that the applicants had not sought a stay of the orders and that the absence of a stay is a prominent consideration for an application to set aside a statutory demand.

48    On 26 November 2025, during a hearing on the applicants’ application to set aside the statutory demands, the respondents’ counsel submitted the “simple answer to this case, [is] there should have been a stay sought. There wasn’t.”

49    On 16 March 2026, during a hearing before O’Bryan J where the applicants sought to review Registrar Gronow’s orders in respect of the statutory demands, Senior Counsel for the applicants conceded that “there hasn’t been an application for stay. That may be something that needs to be pursued” and “otherwise, it does seem, your Honour, with the benefit of this discussion and, with respect, the benefit of your Honour’s elucidation of the principles which we agree with, that perhaps what has to be pursued are simply stays every time there’s an appeal”.

50    In the period during which the applicants were on notice of the need to, but did not seek a stay of the Penalty Orders or the Costs Orders, the respondents have spent approximately $139,257.75 (excluding GST) in enforcement costs. Those are costs which are likely to have been avoided had the applicants made any application for a stay at an earlier time.

51    At the interlocutory hearing the applicants submitted that the respondents voluntarily pursued an aggressive enforcement strategy, which displaces any prejudice that might arise from the grant of the stays. I do not accept that submission. If a stay was sought and granted at an earlier stage, the respondents would not have been able to pursue the enforcement strategy that they did.

52    I consider that in circumstances where the applicants have been on notice that absent a stay the Costs Orders and the Compensation and Penalty Orders remained owing and where the respondents have incurred substantial costs recovering the amounts to which they were entitled, that the respondents have suffered prejudice.

FURTHER GROUND ON UTILITY OF THE STAY

53    The respondents submit that a stay should not be granted for a further “belts and braces” reason. They say that a stay should not be granted to prevent winding up orders being made against FSA (and the consequences of FSA’s liquidation) because the granting of a stay of the Compensation and Penalty Orders and the Costs Orders will not prevent that consequence. They submit that the statutory presumption of insolvency has arisen by reason of the relevant statutory demands having not been complied with or set aside and s 459S of the Corporations Act 2001 (Cth) prevents FSA from resisting a winding up application on grounds other than one which demonstrates solvency: relying on Braams Group Pty Ltd v Miric [2002] NSWCA 417; 171 FLR 449. Where I have found that a stay is not justified for the reasons explained, it is not necessary for me to determine this further ground.

DISPOSITION AND COSTS

54    For all of those reasons the interlocutory applications should be dismissed. The applicants should pay the respondents’ costs of those applications.

Associate:

Dated:    27 May 2026

APPENDIX

The orders the subject of the stay

Orders of O’Callaghan J made 6 May 2025 in VID38/2023

Orders of Registrar Legge made 27 August 2025 in VID38/2023

Orders of O’Callaghan J made 6 May 2025 in VID209/2024

SCHEDULE OF PARTIES