Federal Court of Australia

Chiodo v Keystone Asset Management Limited (receivers and managers appointed) (in liquidation) [2026] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the application to be taxed if not agreed.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    This is an application by Mr Paul Authony Chiodo for leave to appeal from interlocutory orders of Moshinsky J made on 16 and 17 February 2026 in Australian Securities and Investments Commission v Keystone Asset Management Ltd (receivers and managers appointed) (in liquidation) (No 4) [2026] FCA 89. Relevantly, his Honour:

(1)    dismissed the applicant’s application to partially set aside certain subpoenas; and

(2)    ordered that the parties have leave to uplift, inspect and copy the documents produced pursuant to the subpoenas, although this uplift order is stayed pending the resolution of this application.

2    In support of his application, the applicant relies upon:

(1)    the affidavit of Mr Seamus Ryan dated 2 March 2026; and

(2)    written submissions dated 22 June 2026.

3    In opposition to the application, the respondent relies upon:

(1)    the affidavit of Ms Kimberley MacKay dated 5 February 2026 (the MacKay Affidavit); and

(2)    written submissions dated 29 June 2026.

Background

4    The background set out in the respondent’s written submissions provides an accurate summary of the historical context of this application and its relationship to certain other proceedings before the Court. Further detail can be found in the primary judgment. The key points, however, are these:

(1)    The respondent was the responsible entity of the Shield Master Fund (SMF), a registered managed investment scheme. It was also the trustee of the Chiodo Diversified Property Fund (CDPF) and the Advantage Diversified Property Fund (ADPF).

(2)    On 27 August 2024 Moshinsky J made orders under s 1323(1)(h) of the Corporations Act 2001 (Cth) (Corporations Act) appointing receivers and managers to the respondent on the basis of an investigation by the Australian Securities and Investments Commission (ASIC) into the conduct of the respondent, its officers and related entities. The receivers were appointed for the purposes of:

(a)    identifying, collecting and securing the property of the respondent held in any of its relevant capacities;

(b)    ascertaining the amount of investor funds received by the respondent;

(c)    identifying any dealings with, payments of, distributions of or uses made of the investor funds by the respondent;

(d)    identifying any property purchased or acquired, directly or indirectly, with investor funds; and

(e)    recovering investor funds.

(3)    Throughout the course of their appointment, the receivers investigated the assets and operations of SMF, CDPF and ADPF. They identified that large portions of CDPF and ADPF funds were advanced to Chiodo Corporation Pty Ltd (Chiodo Corporation) and Robert Filippini and their related entities and individuals, including the applicant. The receivers' tracing exercise, for the purpose of identifying where the funds were paid, is ongoing.

5    The relevant recent history, identified in both parties’ submissions on this application, is as follows:

(1)    At the request of the respondent, on 16 December 2025 the Court issued three subpoenas for the production of documents to each of Australia and New Zealand Banking Group Limited, the Commonwealth Bank of Australia, and Westpac Banking Corporation. The subpoenas sought the production of bank statements in the period 1 January 2017 to 1 November 2019 for accounts of various entities including the applicant, his family members, and companies related to him (the Chiodo Entities).

(2)    The applicant applied to set aside the subpoenas insofar as they sought production of statements of the accounts of the Chiodo Entities. It was the respondent’s position that the bank statements sought by the subpoenas were required to assist the receivers in determining where CDPF funds were directed and whether they were ultimately commingled with SMF assets.

(3)    That application was the subject of Moshinsky J’s judgment dated 16 February 2026 and the orders dated 16 and 17 February 2026, which are now the subject of this application for leave to appeal.

6    On 4 June 2026 Moshinsky J made orders for the production of documents of the Chiodo Entities by the applicant pursuant to s 597(9) of the Corporations Act: see Australian Securities and Investments Commission v Keystone Asset Management Limited (receivers and managers appointed) (in liquidation) (No 5) [2026] FCA 729 (Section 597 Proceeding). Those orders require the applicant to produce 21 out of the 22 categories of bank statements the subject of the subpoenas (save for any copies the applicant has obtained by uplifting documents produced under the subpoenas).

7    The applicant submits that in the absence of an ongoing application against him by the receivers or by ASIC, if the primary judgment is allowed to stand it will have the practical effect of determining the applicant’s claim for relief in that the bank statements produced on subpoena will have been produced.

Relevant principles

8    The relevant principles are well-established. In exercising its discretion to grant leave to appeal pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth), the Court will consider whether:

(1)    the judgment in question is attended with sufficient doubt to warrant its reconsideration by a Full Court; and

(2)    on the assumption that the judgment is wrong, whether substantial injustice would result if leave was refused: see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398–9 (Sheppard, Burchett and Heerey JJ); Dimitrovski v Boland [2023] FCAFC 86 at [29] (Markovic, Downes and Kennett JJ); Monks v Pieman Resources Pty Ltd [2025] FCAFC 121 at [35]–[36] (Halley, Meagher and Wheatley JJ), citing Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98; 252 FCR 1 at [38] (Jagot, Yates and Murphy JJ).

9    The applicant is correct to note that the two criteria are cumulative, and that both must ordinarily be made out. It may be accepted that this test is appropriate for the general run of cases, but that it should not be applied as if it were some hard and fast rule. Each case must be considered on its merits, and leave will more readily be granted where the judgment, if allowed to stand, will have the practical effect of determining the claim of a party to relief: Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; 217 FCR 238 at [29] (Dowsett, Foster and Yates JJ); Seven Network Ltd v News Ltd [2005] FCAFC 125; 144 FCR 379 at [5] (Branson J, Allsop and Edmonds JJ agreeing). It may also be accepted that leave to appeal may be appropriate where the questions posed for resolution on appeal have general importance beyond the concerns of the parties: Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (Perram, Moshinsky and Hespe JJ); Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; 169 FCR 227 at [10] (Heerey, Moore and Tracey JJ). It is also the case that an application for leave should not be conducted as though it is a preliminary hearing of the appeal itself: ACE Insurance Ltd v Trifunovski [2012] FCA 235; 291 ALR 46 at [9] (Flick J), citing Food Channel Network Pty Ltd v Television Food Network GP [2009] FCA 1446 at [26] (Reeves J) and Petroulias v Commissioner of Taxation [2011] FCA 795 at [45] (Reeves J).

Is the judgment attended by sufficient doubt?

10    The applicant is critical of the findings of the primary judge that the power of the Court to issue a subpoena at the request of a Court-appointed receiver is incidental to the Court’s power to appoint the receiver for the purposes of identifying and securing property of a company (at [29]), and that the established principles relating to the issue of subpoenas in inter partes litigation do not foreclose the possibility of utilising a subpoena to support the work of a Court-appointed receiver (at [30]).

11    The applicant complains that no case law was cited in support of these propositions by his Honour, and contends that “ordinary principles” apply. That is, that a subpoena ought only be issued if the documents sought relate to an issue in a proceeding, as defined by pleadings or an extant application. The applicant refers in this regard to Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 (Powell J), as well as to Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687 at [79] (Flick J), Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20] (Flick J) and Mandic v Phillis [2005] FCA 1279; 88 ALD 676 at [33] (Conti J). As counsel for the applicant submitted orally, the party seeking to issue a subpoena must demonstrate that the subpoena has a legitimate forensic purpose; if it is cast in terms which require the production of documents which do not have apparent relevance to the issues in the proceeding, the subpoena may be set aside: Wong v Sklavos [2014] FCAFC 120; 319 ALR 378 at [12] (Jacobson, White and Gleeson JJ); Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited (No 6) [2025] FCA 1522 at [8] (Kennett J); Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185; 418 ALR 284 at [37] (Wheelahan, Anderson and Jackman JJ).

12    The applicant submits that the question of whether this type of broad and undefined power is permissible is attended with sufficient doubt to warrant consideration by a Full Court, and that the application should not otherwise be treated as a preliminary hearing of the appeal itself.

13    The applicant contends also that this is a question of general importance beyond the concerns of the parties, and so it is appropriate for consideration by a Full Court.

14    In addition, the applicant submits that there is sufficient doubt attending the primary judge’s finding that the bank statements “may well assist the Receivers in carrying out their functions” (at [31] of the primary judgment). In this regard the applicant refers to the primary judge’s reliance on [35] of the MacKay Affidavit. The applicant contends that this evidence was based on information at [13] of the same affidavit and, apparently, that his Honour’s reliance upon it was misplaced because Ms MacKay did not refer to the applicant’s related entities or individuals. It is the applicant’s position that, except for the bank statements of Chiodo Corporation, the primary judge should have found that there was no evidence that the receivers believed that the bank statements sought would disclose the receipt of CDPF funds.

15    Notwithstanding the applicant’s submissions, I do not consider that the conclusions of the primary judge are attended by sufficient doubt to warrant their reconsideration by a Full Court. The Court’s power to set aside a subpoena, or not to do so, is discretionary, and it concerns a matter of practice and procedure: see, for example, M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17 at [113] (Preston CJ of LEC). Axiomatically, appellate review is particularly constrained in matters of practice and procedure, and an appeal court will be slow to interfere with such a determination of the judge at first instance: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

16    The primary judge took the view that the subpoenas had a proper basis. His Honour identified his reasons for doing so at [29]–[32] of the primary judgment, by reference to evidence which was not the subject of objection. As has been mentioned, the essence of his Honour’s view was that the power of the Court to issue a subpoena in circumstances where a receiver has been appointed by the Court for the purposes of identifying and securing property of a company is incidental to the Court’s power to appoint the receiver in the first place. This is because, obviously enough, if the receiver cannot obtain access to relevant documents held by third parties it may be difficult for the receiver to perform the role to which they have been appointed and for the purposes of the appointment to be achieved. Cases involving the issue of subpoenas in inter partes litigation, his Honour considered, arise in a different context and should not be taken to foreclose the use of subpoenas where appropriate to support the work of a Court-appointed receiver.

17    In my assessment the conclusions of the primary judge in this regard are unremarkable and consistent with the exercise of the power to appoint receivers and managers to a company contained in s 1323(1)(h) of the Corporations Act. The fact that the underlying proceeding is not usual inter partes litigation is significant in the analysis. Despite the applicant’s protestations to the contrary, the proceeding is taking place in a regulatory context. The evidence is that the subpoenas are necessary to progress the investigation, which is on foot. The requirement for which the applicant contends, namely that a subpoena ought only be issued if the documents sought relate to an issue in pleadings or an extant application, would make little sense in the present circumstances.

18    Insofar as the applicant challenges the primary judge’s reliance on the MacKay Affidavit, this submission is unconvincing. As the respondent submits, Ms MacKay’s evidence as to the relevance of the documents sought under the subpoenas was not challenged before the primary judge. I accept also, contrary to the applicant’s submissions, that Ms MacKay’s evidence was not limited to the related entities of Chiodo Corporation and Robert Filippini. Ms MacKay’s evidence was clear enough. She deposed, at [35], that the bank accounts listed in the subpoenas are accounts that the receivers consider may have received CDPF funds, either directly or indirectly, based on the books and records available to the receivers and their investigations more generally. There was nothing inappropriate about the primary judge relying on this evidence.

19    Finally, as the respondent submits, whether or not there is any ongoing application against the applicant is not to the point. The Court’s power to issue subpoenas pursuant to r 24.12 of the Federal Court Rules 2011 (Cth) in any proceeding is obviously broad, and it recognises that there are different types of proceedings.

Would there be substantial injustice?

20    Turning then to the question of whether the applicant would suffer substantial injustice if leave were to be refused, the applicant submits only that the relevant documents contain personal information of him and his wife and daughter, and companies associated with him. The applicant submits that the primary judgment confers a right to inspect bank statements that the respondent should not have.

21    It is difficult to see how substantial injustice flows from the orders made by the primary judge. The principal reason for this is that production orders have been made in the Section 597 Proceeding. As the respondent submits, even if the applicant were to be granted leave to appeal and were to succeed on the appeal, under the production orders the applicant is compelled to produce copies of nearly all of the bank statements which are the subject of the subpoenas. The receivers have an entitlement to 21 of these 22 bank statements, regardless of whatever is produced on subpoena. I agree that it follows that virtually all of the applicant’s personal data, and that of his wife and daughter and his companies, will be revealed to the receivers in any event. I accept therefore that the applicant has demonstrated no real prejudice, let alone substantial injustice, were leave to appeal to be refused.

Conclusion

22    For these reasons, the application for leave to appeal should be dismissed. No real prejudice has been demonstrated, let alone substantial injustice, and the applicant has not established sufficient doubt as to the correctness of the primary judgment to warrant its reconsideration by a Full Court.

23    The respondent should have its costs of and incidental to the application for leave to appeal.

Associate:

Dated:    14 July 2026