Federal Court of Australia

Australian Income Solutions Pty Ltd v Australian Securities and Investments Commission [2026] FCA 886

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the first, second and fourth defendants, accepted for filing on 23 May 2026 in VID228/2020 (Companies Proceeding), together with the originating process filed by the plaintiffs on 24 March 2026 in QUD160/2026 (Statutory Demand Proceeding), be heard concurrently (Concurrent Hearing).

2.    The evidence received in the Companies Proceeding is to stand as evidence in the Statutory Demand Proceeding and vice versa.

3.    Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), by 4:00pm on 29 June 2026, the parties confer, prepare and file a joint tender bundle of any document not already annexed to affidavits filed in the Companies Proceeding and Statutory Demand Proceeding upon which they propose to rely.

4.    By 4:00pm on 10 July 2026, the parties exchange and file written submissions in relation to the Concurrent Hearing.

5.    By 4:00pm on 17 July 2026, the parties file and serve revised versions of their written submissions incorporating any material upon which they propose to rely in reply to the other parties’ written submissions.

6.    The Concurrent Hearing be listed for hearing at 9:30am on 24 July 2026 in Brisbane in a courtroom to be determined, on an estimate of one day.

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 the transcript)

LEE J:

1    This matter concerns two related proceedings arising out of litigation between the Australian Securities and Investments Commission (ASIC) and companies associated with Mr James Peter Mawhinney and the “Mayfair 101 group”.

2    The first is QUD 160 of 2026 (Statutory Demand Proceeding), a consolidated proceeding brought by Australian Income Solutions Pty Ltd, M101 Holdings Pty Ltd and Online Investments Pty Ltd (Companies) against ASIC to set aside statutory demands served by ASIC on 3 March 2026.

3    The second is VID 228 of 2020 (Companies Proceeding), in which Anderson J delivered a liability judgment (being Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd (No 2) [2021] FCA 247) and a penalty judgment (being Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd [2021] FCA 1630).

4    In the Companies Proceeding, the first, second and fourth defendants have filed an interlocutory application seeking to set aside orders made by Anderson J following on from his Honour’s judgments.

5    Additionally, in the Statutory Demand Proceeding, the Companies seek relief under ss 459H and/or 459J of the Corporations Act 2001 (Cth) setting aside statutory demands. Those statutory demands are founded upon debts, being the pecuniary penalty orders made in the Companies Proceeding. More particularly, the interlocutory application in the Companies Proceeding seeks relief pursuant to rr 30.21(2)(a) and/or 39.05(a) of the Federal Court Rules 2011 (Cth), including orders setting aside orders made on 23 March 2021 and 1 August 2022, and staying orders made on 21 January 2022.

6    As noted above, an allied interlocutory application has been filed in the Companies Proceeding. It is, in substance, an application to reopen or set aside the orders which provide the foundation for the debts the subject of the statutory demands.

7    Earlier orders, proposed by consent, had provided for the Statutory Demand Proceeding to be held in abeyance pending the determination of that application.

8    After the interlocutory application in the Companies Proceeding was docketed to me, it seemed to me that maintaining the course proposed by the parties was unlikely to be an efficient use of the resources of the Court. My preliminary view was that the two proceedings raise overlapping issues, and the application to set aside the prior orders in the Companies Proceeding was logically anterior to, and would likely determine, the disposition of the Statutory Demand Proceeding.

9    This is because if the Companies succeed in obtaining orders in the Companies Proceeding setting aside the relevant orders upon which the pecuniary penalty debts depend, it would appear to follow that the statutory demands should be set aside. Conversely, if the Companies fail in that application, then the Statutory Demand Proceeding will need to be determined in light of that failure, including any residual argument concerning asserted inconsistency between findings made in the Companies Proceeding and findings in another proceeding concerning Mr Mawhinney.

10    ASIC had identified a separate “inconsistency” argument in the Statutory Demand Proceeding. My further provisional view, expressed during the case management hearing, was that there may be difficulty with that argument given the merger of the parties’ rights in the judgment. But it is not necessary to explore this theoretical issue. It is now theoretical because both sides of the record now expressly accept that the result of the application to set aside the orders made in the Companies Proceeding will be determinative of the outcome of the Statutory Demand Proceeding. That agreed position, although it merely reflects the forensic reality of the situation, is nonetheless sensible.

11    Given this common ground, it is apparent the efficient and practical course is for the two matters to be heard together, with evidence in one proceeding standing as evidence in the other. That course will avoid duplication, avoid delay, and is consistent with the parties’ obligations and the overarching purpose identified in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

12    It is also important that applications to set aside statutory demands be dealt with promptly. Standing the Statutory Demand Proceeding over to an unspecified future date, pending the disposition of the interlocutory application in the Companies Proceeding, would not advance that objective.

13    Consistently with the sensible course that emerged during the case management hearing, both parties accepted the concurrent hearing course, with evidence in one proceeding standing as evidence in the other.

14    Accordingly, I order that the interlocutory application filed by the first, second and fourth defendants, accepted for filing on 23 May 2026 in the Companies Proceeding, together with the originating process filed by the plaintiffs on 24 March 2026 in the Statutory Demand Proceeding, be heard concurrently. I also order that the evidence received in the Companies Proceeding stand as evidence in the Statutory Demand Proceeding and vice versa.

15    Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), I direct that, by 4:00pm on 29 June 2026, the parties confer, prepare and file a joint tender bundle of any document not already annexed to affidavits filed in the proceedings upon which they propose to rely.

16    I further direct that, by 4:00pm on 10 July 2026, the parties exchange and file written submissions in relation to the concurrent hearing and that, by 4:00pm on 17 July 2026, the parties file and serve revised versions of their written submissions incorporating any material upon which they propose to rely in reply to the other parties’ written submissions.

17    The concurrent hearing should also be listed for hearing at 9:30am on 24 July 2026 in Brisbane, for an estimate of one day.

Associate:

Dated: 8 July 2026

SCHEDULE OF PARTIES