Federal Court of Australia

Australian Income Solutions Pty Ltd v Australian Securities and Investments Commission (Reopening Application) [2026] FCA 1064

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the first, second and fourth defendants on 15 May 2026 in VID228/2020 (Companies Proceeding) be dismissed, with the first, second and fourth defendants to pay the plaintiff’s costs of that application on the standard basis, to be taxed if not agreed.

2.    The originating process filed by the plaintiffs in QUD160/2026 (Statutory Demand Proceeding) be dismissed, with the plaintiffs to pay the defendant’s costs of that application on the standard basis, to be taxed if not agreed.

3.    Pursuant to s 459F(2)(a)(i) of the Corporations Act 2001 (Cth), the period for each of the plaintiffs in the Statutory Demand Proceeding to comply with the statutory demands served on each of them by the defendant on 3 March 2026 be extended for a period ending 21 days after the date of this order.

4.    Pursuant to r 35.13(b) of the Federal Court Rules 2011 (Cth), the time for filing any application for leave to appeal from Australian Income Solutions Pty Ltd v Australian Securities and Investments Commission (Reopening Application) [2026] FCA 1064 and orders made on 24 July 2026 be extended to 20 August 2026.

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:

A    Introduction

1    These reasons concern two related applications which, although brought in separate proceedings, raise overlapping questions arising out of lengthy litigation between the Australian Securities and Investments Commission (ASIC) and companies associated with Mr James Peter Mawhinney.

2    The applications have been heard concurrently pursuant to earlier case management orders made by this Court because the parties accepted, correctly, that the disposition of one application will determine the fate of the other: see Australian Income Solutions Pty Ltd v Australian Securities and Investments Commission [2026] FCA 886 (at [10]).

3    The first application is an interlocutory application brought in VID 228 of 2020 (Companies Proceeding) by Australian Income Solutions Pty Ltd (formerly Mayfair Wealth Partners Pty Ltd), M101 Holdings Pty Ltd and Online Investments Pty Ltd (together, the Companies). The Companies apply under the Federal Court Rules 2011 (Cth) (FCR), specifically FCR 30.21(2)(a) and FCR 39.05(a), to set aside orders made by Anderson J on 23 March 2021 (Liability Orders): Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd (No 2) [2021] FCA 247 (Liability Judgment). They also seek a stay of the pecuniary penalty orders made on 21 January 2022 (Penalty Orders): Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd [2021] FCA 1630.

4    The Companies contend that the liability hearing proceeded in circumstances where they were unrepresented and absent. They further assert that, after the Full Court remitted the proceeding brought personally against Mr Mawhinney for rehearing (Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159; (2022) 294 FCR 375 (Mawhinney Appeal Judgment)), ASIC again sought before Button J to establish substantially the same underlying contraventions as a jurisdictional prerequisite to relief under s 1101B of the Corporations Act 2001 (Cth) (CA). Following a contested hearing, Button J concluded in Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 8) [2025] FCA 741 (Button J Judgment) that the representation that the products were comparable to bank term deposits (Bank Term Deposit Representation), which Anderson J had found to have been made, was not made (at [695]–[700]). The Companies submit that this demonstrates that they possessed a reasonably arguable defence which was never heard and provides a sufficient basis for reopening the Liability Orders.

5    The second application is in the consolidated proceeding QUD 160 of 2026 (Statutory Demand Proceeding), commenced by the Companies under s 459G of the CA, by which they seek to set aside statutory demands issued by ASIC to recover the pecuniary penalties imposed in the Companies Proceeding. As noted above, during the course of case management, the parties accepted that if the Liability Orders remain undisturbed, the statutory demand application necessarily fails; conversely, if the Liability Orders are set aside, the statutory demands cannot stand.

6    Although the relief presently sought is interlocutory in form, the applications arise against the background of litigation which has proceeded over several years and has generated several judgments of this Court. The procedural history is detailed, and it is impossible to understand either the submissions advanced by the parties or the issues requiring determination without attention being given to that history.

7    Indeed, the complexity of the present applications arises because relatively straightforward legal principles must be applied against an unusual procedural background involving separate but related proceedings, findings made in different contexts, subsequent appellate intervention in one of those proceedings, and the interaction between final judgments, pecuniary penalty orders and statutory demands founded upon those orders. In this way the history assumes special importance.

8    For reasons I will detail below, the Companies contend that exceptional circumstances exist warranting the reopening of final orders made more than five years ago. Unsurprisingly, ASIC resists this course and submits no exceptional circumstances exist warranting the relief sought, having regard to considerations of finality, delay, prejudice and the absence of any demonstrated arguable defence.

B    BACKGROUND AND PROCEDURAL HISTORY

B.1    The Companies Proceeding in Summary

9    The present applications have their origins in civil penalty proceedings commenced by ASIC as long ago as April 2020 against companies associated with what was then known as the “Mayfair 101 group”. ASIC alleged that the Companies had engaged in misleading or deceptive conduct and had made false or misleading representations in connexion with the marketing of financial products, including M+ Fixed Income Notes and M Core Fixed Income Notes. ASIC alleged contraventions of s 1041H of the CA together with provisions of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).

10    ASIC sought declarations of contravention, injunctive relief and pecuniary penalties against the Companies. Mr Mawhinney was the sole director and ultimate beneficial owner of the Companies and occupied that position throughout the relevant period.

11    ASIC alleged that: first, the Bank Term Deposit Representation was made; secondly, principal would be repaid in full upon maturity (Repayment Representation); thirdly, the products carried no risk of default (No Risk of Default Representation); and fourthly, in the case of the M Core Fixed Income Notes, the products were fully secured (Security Representation).

B.2    The Liability Hearing

12    The liability hearing took place before Anderson J on 15 February 2021. It occupied a single day. The Companies were not represented at that hearing. Mr Mawhinney sought leave to appear on behalf of the Companies, but that application was refused. The Companies submit that they were unable to obtain funding to retain legal representation.

13    Following that hearing, Anderson J delivered reasons on 23 March 2021 and made the Liability Orders declaring that the Companies had contravened the relevant provisions of the CA and the ASIC Act.

14    The proceeding thereafter entered the relief phase. By that stage, the Companies were legally represented. Anderson J made the Penalty Orders on 21 January 2022, following publication of reasons in December 2021. The Penalty Orders later became the judgment debts upon which ASIC founded the statutory demands challenged in the Statutory Demand Proceeding.

15    Parallel with the Companies Proceeding, ASIC commenced proceeding VID 524 of 2020 against M101 Nominees Pty Ltd, Mr Mawhinney and Sunseeker Holdings Pty Ltd (Mawhinney Proceeding). The Mawhinney Proceeding differed from the Companies Proceeding in both its statutory basis and the relief sought, but arose out of substantially the same underlying commercial activities.

16    Anderson J heard the Mawhinney Proceeding on 16 February and 9 March 2021. On 19 April 2021, his Honour made orders restraining Mr Mawhinney for 20 years from engaging in specified activities concerning financial products: Australian Securities and Investments Commission v M101 Nominees Pty Ltd (No 3) [2021] FCA 354; (2021) 153 ACSR 230 (at 333–335 [459]–[474]).

B.3    Subsequent Appellate History

17    The Liability Orders and Penalty Orders did not mark the end of the litigation. The Companies exercised their appellate rights. Save for the setting aside of one injunction, the Full Court dismissed the Companies’ appeal: Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170; (2022) 295 FCR 106 (Companies Appeal Judgment) (at 176 [283] per Jagot, O’Bryan and Cheeseman JJ). An application for special leave to appeal to the High Court was refused.

18    The orders made in the Mawhinney Proceeding were also the subject of appeal. In the Mawhinney Appeal Judgment, Jagot, O’Bryan and Chessman JJ allowed an appeal and remitted the proceeding for rehearing before another judge: Mawhinney Appeal Judgment (at 378–379 [4]–[5], 403 [97], 420–421 [169]–[170]). The Full Court upheld the availability of relief under s 1101B of the CA: Mawhinney Appeal Judgment (at 419–420 [163]–[164]).

C    THE NATURE OF THE APPLICATIONS AND APPLICABLE PRINCIPLES

C.1    The Applications

19    The Companies now seek to set aside the Liability Orders pursuant to FCR 30.21(2)(a) and FCR 39.05(a). They did not seek to set aside the Penalty Orders; rather, they sought a stay of the Penalty Orders pursuant to FCR 41.03 and FCR 41.11, contending that, if the Liability Orders were set aside, the Penalty Orders “could not stand” because they were founded upon the findings of contravention embodied in the Liability Orders.

C.2    The “Inherent” Power

20    In seeking to set aside the Liability Orders, the written submissions of the Companies also invoked what was described as the Court’s “inherent power” to set aside an order made against a party in that party’s absence.

21    Before turning to the provisions of the FCR, and at the risk of sounding like a broken record, it is necessary to divagate again to correct that description of the last-mentioned source of power. Parties continue, with surprising and irritating persistence, to attribute to this Court an “inherent jurisdiction” or “inherent power” of the kind possessed by the superior courts at Westminster. This is wrong. As I repeated recently in Grow Surge Pty Ltd (in liq) v Videriva Pty Ltd (in liq) [2026] FCA 974 (at [5]–[6]), this Court does not possess an inherent jurisdiction in that sense. Only superior courts of record invested with unlimited jurisdiction are properly described as possessing inherent powers. This Court is a federal court of defined jurisdiction, conferred by the Constitution or laws of the Commonwealth.

22    This does not mean that the Court lacks the powers necessary to regulate its own procedure, prevent an abuse of its process or ensure the effective exercise of its jurisdiction. A federal court possesses powers expressly conferred by statute and, in addition, such powers as are necessarily implied or incidental to the jurisdiction conferred upon it. But such powers should be identified accurately as implied or incidental powers, not inherent powers.

23    The continued use of the expression “inherent power” in relation to this Court ought to be stamped out.

24    The distinction is not mere pedantry. Precision as to the source of judicial power is especially important in a federal court, whose jurisdiction and powers depend upon constitutional and statutory conferral.

25    In the present case, there is no need to resort to any implied power unless the express powers conferred by the FCR are inadequate (except, perhaps, as the principled way to set aside the
Penalty Orders if I was satisfied the Liability Orders should be set aside (being relief that was not sought by the Companies)). What presently matters is that the Liability Orders were made after a trial which proceeded in the Companies’ absence, and the FCR deal expressly with that circumstance. I will therefore primarily concentrate upon FCR 30.21(2)(a) and FCR 39.05(a).

C.3    The FCR and Guiding Principles for the Exercise of Discretion

26    FCR 30.21(2)(a) provides, relevantly, that if a trial proceeds in the absence of a party and an order is made during or at the conclusion of the trial, the party who was absent may apply to the Court for an order setting aside or varying the order. FCR 39.05(a) provides that the Court may vary or set aside a judgment or order after it has been entered if the judgment or order was made in the absence of a party. The Liability Orders answer the relevant description in each rule: they were made following a trial which proceeded in the absence of the Companies.

27    The relevant provisions of the FCR confer a discretionary power. The circumstance that an order was made in a party’s absence does not give rise to an entitlement to have the order set aside. It provides the occasion for an application, following which the Court must determine whether the circumstances justify disturbing an order already made and entered.

28    The discretion to be exercised reflects two important considerations: first, the public interest in the finality of litigation; and secondly, the fundamental importance of affording a person affected by an order a proper opportunity to be heard. The exercise of the discretion requires those considerations to be reconciled in the circumstances of the particular case.

29    The authorities referred to in the Companies’ submissions include Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 (at 589 per Rich J), Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 (at 4, 8, 15–16 per Gibbs J), Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at 182–183 [27]–[28] per Gaudron, McHugh, Gummow and Hayne JJ; 184 [35] per Kirby J), and Polis v Zombor (No 5) [2022] FCA 122 (at [43]–[45] per O’Bryan J). There is no need to canvass those cases. The Companies rely upon them for the uncontroversial proposition that, where an order has been made in the absence of a party, the Court may relieve against an injustice resulting from that party not having been heard. They accept, however, that the power is exercised with care and ordinarily only in what has sometimes been described as “exceptional circumstances”.

30    In determining whether an order made in a party’s absence should be set aside, the Court commonly has regard to two matters of particular importance: first, the explanation for the party’s absence; and secondly, whether the party has a case which is reasonably arguable.

31    Those matters are not, however, exhaustive. The discretion is broad and must be exercised by reference to all relevant circumstances. But they ordinarily provide the principal framework for consideration of an application of this kind.

32    As to the first, the explanation for the absence is significant because a party ordinarily should be bound by a decision made after the party had notice of the hearing and a proper opportunity to appear and oppose the relief sought. The purpose of the FCR is not to relieve a party from the consequences of a deliberate forensic choice merely because the choice later proves unsuccessful. Nor do the relevant provisions of the FCR permit a party to ignore a proceeding, await the outcome and, if dissatisfied, seek another opportunity to contest the case.

33    On the other hand, where a party has not been heard without relevant fault and the absence has resulted in a potentially arguable case not being placed before the Court, the considerations favouring relief are stronger. The focus is not simply upon whether the party was physically absent. It is upon the circumstances producing that absence and whether the result is a potential injustice which the Court should correct.

34    As to the second, the requirement that the applicant demonstrate an arguable case serves a related purpose. The Court will not ordinarily set aside a final judgment merely to enable an absent party to conduct a futile rehearing. The applicant need not establish at this stage that the proposed case will succeed. The question is whether the case sought to be advanced is sufficiently arguable that the interests of justice may warrant disturbing the existing order and allowing the controversy to be determined after hearing both sides.

35    The Court does not, upon an application under the FCR, conduct the proposed retrial. Nor should it make final findings upon contested evidence which would properly be determined at any rehearing. But the Court must examine the proposed case with sufficient care to determine whether it is real and reasonably arguable, rather than speculative or merely asserted. The authorities relied upon in the submissions also demonstrate that the existence of an arguable defence is not by itself decisive. In EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd (No 4) [2026] FCA 805 (at [43], [51], [54]–[57] per Burley J), relief under FCR 39.05(a) was refused notwithstanding an acceptance that an arguable defence existed. The applicant had chosen to ignore communications concerning the litigation because it did not suit him to attend to them, and the passage of time meant that evidence relevant to the respondent’s case had probably been lost. The case illustrates the need to evaluate the explanation for the absence, the effect of delay, any forensic prejudice and the whole procedural history, rather than treating an arguable defence as dispositive.

36    A further important point ought to be made. ASIC submitted in writing that the discretion should be exercised consistently with the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). But it can be put higher than that. The position is that since the introduction of Pt VB of the FCA Act, s 37M(3) provides that any civil practice and procedure provision (which includes the FCR) must be interpreted and applied, and any power conferred by the provision must be exercised or carried out, in a way that best promotes the overarching purpose. In accordance with the dictates of s 37M(1) of the FCA Act, the overarching purpose is, of course, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

37    Needless to say, in having regard to the overarching purpose, the Court must have regard to the efficient use of judicial and administrative resources, the timely disposal of proceedings and the efficient disposal of the Court’s overall caseload. The importance of finality is integral to the proper administration of justice informed by the dictates of Pt VB. In facilitating the overarching purpose, several other considerations may loom large in the exercise of discretion depending upon the circumstances. It is worth making specific mention of four.

38    First, the application must be considered in the context of the reality that the reopening of a final judgment necessarily consumes further resources, exposes the opposing party to renewed litigation and postpones the point at which the parties may order their affairs on the basis that the dispute has been finally determined.

39    Secondly, a reopening application does not provide a collateral avenue of appellate review. The difficulty said to arise must be connected with the fact that the order was made in the applicant’s absence and with the resulting want of an opportunity to advance evidence or submissions which could have been placed before the primary Judge.

40    Although a reopening application and an appeal are distinct, it does not follow that the existence or exercise of appellate rights is irrelevant. It is sufficient for present purposes to recognise that the appellate history is plainly material. Finality assumes particular importance where the impugned orders have not merely been entered and allowed to stand but have been affirmed on appeal and an application for special leave to appeal has been refused.

41    Thirdly, delay is relevant both in itself and because of its potential consequences. The longer a final judgment has stood, the more powerful the interest in finality ordinarily becomes.

42    Delay may also produce concrete forensic prejudice through the loss of documents, fading memories, unavailable witnesses or changes in the position of the opposing party or third parties. The weight to be given to delay will depend upon its length, its explanation and its practical consequences.

43    Fourthly, and relatedly, prejudice is not limited to the loss of evidence. There is no suggestion of evidentiary prejudice in the present case. The burden and expense of defending completed litigation, the existence of earlier appellate proceedings, the payment or enforcement of judgments, and the disruption of settled expectations may also be relevant.

44    The express powers in FCR 30.21(2)(a) and FCR 39.05(a), together with any relevant implied power which may exist to control the Court’s own process, must be approached consistently with these principles. The implied power is not an unconfined reservoir of authority capable of circumventing the limitations or considerations governing the express powers. Where the FCR deal directly with the circumstances in question, they provide the principal focus of analysis.

D    THE COMPANIES’ ARGUMENT

45    The Companies submitted in writing that the Liability Orders fall directly within FCR 30.21(2)(a) and FCR 39.05(a). The liability trial proceeded in their absence and the Liability Orders were made following that trial. They contended that the relevant provisions of the FCR are deliberate qualifications upon the principle of finality and exist to permit the Court to relieve against the injustice which may arise where orders are made without the affected party having been heard.

46    The Companies accepted that the power is exceptional and is to be exercised with care. Their submission was that the present matter is the paradigm case for the exercise of the power because: (a) the Companies were not heard at the liability trial; (b) their absence is explained by detailed evidence of financial incapacity; (c) they possess a demonstrably arguable defence; (d) the subsequent contested proceeding against Mr Mawhinney produced a materially different result on one of the principal representations; and (e) ASIC has identified no concrete forensic prejudice arising from the passage of time.

47    The Companies emphasised that they did not allege appealable error on the part of Anderson J. They said their case was not that his Honour erred upon the material and submissions placed before him. Rather, their case was that the trial was not a hearing on the merits in the relevant sense because it proceeded wholly in their absence and without any evidence or submissions being advanced on their behalf.

48    They submitted that this distinction answers ASIC’s reliance upon the prior appeal. An appeal, they said, tests the judgment upon the record as it stood before the primary Judge. The present application, they submitted, asked the different question whether orders made after an uncontested hearing should stand where the absent parties can now demonstrate that there was a viable case which was never heard.

49    The Companies relied upon the Companies Appeal Judgment (at 112–113 [9]–[11] per Jagot, O’Bryan and Cheeseman JJ) as supporting the availability of the present course. In writing, they submitted that the Companies Appeal Judgment drew attention to FCR 30.21 and FCR 39.05(a) when explaining why contentions not raised before Anderson J could not be advanced for the first time on appeal. On their argument, it would be artificial to treat their unsuccessful appeal as excluding resort to the very provisions to which that judgment referred as the means by which orders made in their absence could be challenged.

50    The Companies therefore rejected ASIC’s submission that the reopening application is a substitute or second appeal. They said the appeal and the present application invoke distinct powers and respond to different asserted forms of injustice.

D.1    The Explanation for the Companies’ Absence

51    The Companies accepted that they knew of the trial listed for 15 February 2021. They did not suggest that they were unaware of the allegations made against them. Their case was that they were unable to appear because they lacked the funds necessary to retain legal representatives and Mr Mawhinney was refused leave to represent them.

52    They resisted the characterisation of their absence as a voluntary or strategic decision. The Companies Appeal Judgment referred to the Companies having made a decision not to appear, but the Companies submitted that this was not a decision to ignore the proceeding, “game” the system or await the result before deciding whether to participate. It was, they said, the inevitable consequence of financial incapacity.

53    The Companies placed their inability to fund representation in the context of two sets of interlocutory orders obtained by ASIC. First, on 16 April 2020, injunctions were made restraining the Companies from advertising, promoting or marketing the relevant note products. The Companies characterised those orders as having closed their ordinary source of capital. Secondly, on 13 August 2020, orders were made in the proceeding against Mr Mawhinney restraining the solicitation or receipt of funds in connexion with financial products and dealings with units in trusts holding real estate assets. The Companies submitted that those orders closed the remaining avenues of asset sales, refinancing and borrowing.

54    They also relied upon the economic conditions produced by the COVID-19 pandemic, which they said further constricted available capital and investor confidence at the same time as the injunctions restricted how funds could be raised.

55    The evidence relied upon by the Companies was said to demonstrate that their financial position and that of the wider Mayfair 101 group progressively unravelled. KHQ Lawyers, who had acted for the Companies, filed a notice of intention to cease acting for want of funds in September 2020. Mr Mawhinney’s application for leave to represent the Companies was refused. Approaches to two further firms were unsuccessful. Attempts to realise assets or obtain other funding failed or were abandoned. A proposed voluntary administration did not proceed because no administrator was prepared to accept appointment without funding of $100,000, which was unavailable.

56    The Companies relied additionally upon the balances in their bank accounts immediately before trial. They submitted that Australian Income Solutions had a balance of nil, M101 Holdings had $804.69 and Online Investments had $155.08. They said those amounts provide objective confirmation that the lack of funds was real and not a contrivance.

57    The Companies further submitted that their conduct once a source of funding was identified was inconsistent with the suggestion that they had elected not to defend the proceeding. They said that, once Mr Mawhinney obtained advice as to a means of raising capital consistently with the interlocutory orders, the Companies promptly retained solicitors and counsel and pursued appellate relief.

58    On this basis, the Companies distinguished EV20. They submitted that the applicant in that case chose to ignore communications concerning litigation because it did not suit him to attend to them. Here, by contrast, the Companies said they wished to defend the proceeding but lacked the practical means to do so. The absence was caused by financial incapacity, not indifference or tactical choice.

D.2    The Asserted Arguable Defence

59    The Companies submitted that they satisfied the requirement to demonstrate an arguable defence in a manner few applicants could. Their principal reliance was upon the outcome of the remitted Mawhinney Proceeding before Button J.

60    In the remitted Mawhinney Proceeding, ASIC sought relief against Mr Mawhinney under s 1101B of the CA. To obtain that relief, ASIC was required to establish foundational contraventions by one or more of the Companies.

61    The remitted Mawhinney Proceeding was fully contested and occupied 16 days. The Companies submitted that the Bank Term Deposit Representation was pleaded in the same terms as it had been before Anderson J. At the hearing, the Companies relied upon an aide-mémoire comparing ASIC’s case at the liability hearing before Anderson J with the case advanced at the remitted hearing before Button J: T44.32–47.6. By reference to a comparison between the annexures to the Liability Judgment and the Button J Judgment, they contended that the same body of marketing material was examined in each proceeding. They also pointed to the fact that ASIC opened the allegation before Button J in materially the same manner as it had before Anderson J.

62    Additionally, the Companies relied also upon ASIC’s forensic conduct in urging Button J to treat the views expressed in the Companies Appeal Judgment as persuasive because her Honour was construing the same documents and considering claims which were very similar to those before the Full Court. The case was conducted by ASIC on the basis that Mr Mawhinney was the controlling mind of the relevant corporate entities and was involved in or associated with the Companies’ alleged contraventions (and hence the making of the representations by the Companies was therefore a necessary foundation for the case against him).

63    As noted above, Button J found that the Bank Term Deposit Representation had not been made, although her Honour found the other three representations established. According to the Companies, the only discernible differences between the two determinations were that the proceeding before Button J was defended and that it was heard by a different judicial officer. They accepted that the mere fact that different judges reached different conclusions could not establish that the Liability Judgment was wrong. Their point was that the Button J Judgment provided concrete proof that the issue was capable of a materially different result when an opposing case was presented.

64    The Companies accepted that the Button J Judgment does not bind them or ASIC in the Companies Proceeding by reason of res judicata or issue estoppel. They relied upon it for a more limited but, they said, compelling purpose which I have already identified: as evidence that the Companies had a viable defence and that the absence of a contest at the first trial may have mattered to the result. Put another way, the Button J Judgment did more than demonstrate that a defence was reasonably arguable; it established that, once ASIC’s allegation was contested, a different outcome in relation to one of the central representations occurred.

65    The Companies also relied upon the existence of what they described as inconsistent judicial determinations on the same substantive allegation. They invoked authorities (albeit principally concerning issue estoppel, Anshun estoppel and abuse of process) for the proposition that conflicting decisions on the same issue are inimical to the proper administration of justice and may bring the administration of justice into disrepute.

66    Their submission was that the present case is exceptional because the exercise of the power to set aside the Liability Orders would serve both relevant ends: it would afford the Companies the hearing they say they were denied, and it would permit the Court ultimately to eliminate the inconsistency between the two sets of findings.

67    The Companies contended that the inconsistency is not confined to the Bank Term Deposit Representation. They said that other findings made by Anderson J upon ASIC’s untested case were either not made by Button J after the contested hearing or were no longer pursued by ASIC. They referred, among other things, to findings or allegations concerning loans of investor funds to family members, insolvency from inception, circumvention of court orders and a total disregard for the law. They submitted that findings of that kind informed the later assessment of penalty and reinforce the practical significance of their absence from the liability trial.

68    The Companies acknowledged that Button J found that the other three representations were made and that aspects of the Button J Judgment are under appeal. They submitted, however, that ASIC has not challenged the finding concerning the Bank Term Deposit Representation and that the time for doing so has expired. They did not rely upon any ground in the pending appeal as demonstrating an arguable basis for impugning her Honour’s findings as to the other three representations.

69    They also contended that, because the Repayment Representation was pleaded identically in both proceedings and remains the subject of the pending appeal from the Button J Judgment, there was a risk that a further inconsistent result might emerge. They said this provided an additional reason not to preserve the present Liability Orders without allowing the Companies to be heard.

D.3    Delay

70    The Companies accepted that the Liability Orders were made in March 2021 and the reopening application was not lodged until May 2026. They submitted, however, that it was misleading to treat that period as a single unexplained delay. They said the chronology must be disaggregated.

71    First, once funding became available, the Companies pursued what they described as the orthodox appellate course. They appealed to the Full Court and, following the dismissal of that appeal, sought special leave to appeal to the High Court. They submitted that it was reasonable to pursue and exhaust that course.

72    Secondly, as noted above, they relied upon the express reference in the Companies Appeal Judgment to FCR 30.21 and FCR 39.05(a). They submitted that the Companies Appeal Judgment identified the distinct procedural avenue now invoked and explained why matters not raised before the primary Judge could not be advanced on appeal.

73    Thirdly, the Companies submitted that they reasonably awaited the determination of the remitted Mawhinney Proceeding. Until that proceeding was determined, the Button J Judgment upon which they now principally relied did not exist. In June 2023, the Companies’ solicitors sought forbearance from ASIC pending the determination of the remitted Mawhinney Proceeding. They warned that the result of the remitter might include a rejection of allegations upon which the Liability Judgment was based. ASIC declined formally to forbear but did not serve a statutory demand for more than two years.

74    The Button J Judgment was delivered in July 2025. ASIC then served statutory demands in October 2025, withdrew them after defects were identified and served the present demands on 3 March 2026. The Companies commenced the Statutory Demand Proceeding within the statutory period and, following advice from senior counsel, filed the reopening application in May 2026.

75    The Companies therefore submitted that the present application was not brought merely because ASIC commenced enforcement proceedings, but that enforcement proceedings gave the issue practical urgency.

76    They submitted that their conduct since 2023 placed ASIC on notice of the asserted risk of inconsistent findings and that ASIC’s own period of inaction reduced the force of any complaint that the Companies failed to move earlier.

D.4    Prejudice and the Overarching Purpose

77    The Companies submitted that ASIC had identified no specific forensic prejudice which would result from reopening the Companies Proceeding. ASIC pointed to no lost document, unavailable witness or other evidentiary disadvantage. The relevant case was documentary in substantial part, and the record relied upon by ASIC was closed in 2021.

78    They contrasted the position with EV20, where the passage of time had probably resulted in the loss of relevant evidence. Here, they said the two considerations which proved decisive against relief in that case were inverted. First, that the Companies’ absence was involuntary; and secondly, that the opposing party had demonstrated no forensic prejudice caused by delay.

79    The Companies accepted that ASIC had incurred the cost and burden of defending the appeal and special leave application. They submitted, however, that ASIC’s costs of those proceedings had been paid and did not constitute relevant prejudice sufficient to outweigh the injustice of maintaining the Liability Orders made without hearing the Companies’ case.

80    They also emphasised ASIC’s position as a regulator enforcing fixed pecuniary penalties payable to the Commonwealth. They submitted that ASIC was not in the same position as an ordinary judgment creditor, which might have altered its position in reliance upon payment of a judgment or the finality of a private dispute.

81    The Companies submitted that the just determination of proceedings, expressly identified as the first matter in s 37M(2)(a), weighed strongly in their favour. They said it would not promote justice or confidence in the administration of justice to expose the Companies to substantial penalties and potential winding up upon findings reached at an uncontested trial when a later contested hearing produced a different result on a central allegation.

82    They accepted that reopening the Companies Proceeding would require further case management and would consume additional time and resources. They submitted, however, that the orderly course was to set aside the Liability Orders, stay the Penalty Orders and defer the redetermination of liability until the appeal from the Button J Judgment has been resolved. The parties could then be directed to confer as to the future conduct of the Companies Proceeding.

83    The Companies contended that to deny relief now would preserve both the denial of a hearing and the inconsistency between the Court’s findings. In their submission, those consequences are more damaging to the administration of justice than the burden involved in conducting a defended determination of the Companies’ liability.

E    THREE IMPORTANT FINDINGS

84    Extensive affidavit material was read on the applications, most of which was irrelevant or provided context otherwise available from the judgments. I have taken that material into account to the extent it was relevant, but when one has regard to the whole of the evidence, it can be seen that several of the submissions made in writing in advance of the hearing by the Companies were pitched far too highly.

85    Three findings assume some importance in assessing the merit of the Companies’ contentions.

86    First, is the evidence as to the alleged impecuniosity of the Companies at the time of the hearing before Anderson J.

87    The evidence elicited during Mr Mawhinney’s cross-examination paints a substantially more complex picture than that conveyed by the proposition advanced in Mr Mawhinney’s evidence-in-chief that the Companies simply lacked the financial resources to defend the Companies Proceeding. Taken as a whole, the evidence discloses a business group confronting financial distress following ASIC’s enforcement action, the onset of the COVID-19 pandemic and the consequential depletion of liquidity. It also reveals that there were numerous and competing demands upon the limited financial and managerial resources then available to the Mayfair 101 group. Those demands included the defence of proceedings brought against Mr Mawhinney personally, the management of multiple complex proceedings, efforts to restructure the Mayfair 101 group and maximise returns to noteholders, attempts to secure refinancing and external funding, and the exploration of voluntary administration and other restructuring options.

88    I accept that, by early 2021, the Mayfair 101 group was experiencing a financial crisis and that the resources available to it were both constrained and under considerable pressure. However, I do not accept that the evidence establishes the simpler proposition that there were no funds available with which the Companies could have defended the Companies Proceeding. That characterisation focusses too narrowly upon the immediate cash position of particular corporate entities and does not adequately reflect the commercial reality disclosed by the evidence as a whole.

89    The evidence clearly establishes that Mr Mawhinney, as the directing mind of the Mayfair 101 group, was required to make decisions as to the allocation of scarce resources between competing priorities. In the course of his cross-examination, he accepted that decisions were made as to which matters should receive priority. The contemporaneous documents are consistent with that evidence.

90    The evidence establishes that priority was given by Mr Mawhinney to defending proceedings brought against him personally and to pursuing the restructuring of the Mayfair 101 group, with a view to preserving value and maximising returns to noteholders, rather than to defending the Companies Proceeding. His contemporaneous correspondence also records his view that defending the proceeding was not “commercially feasible”: Affidavit of James Peter Mawhinney sworn 15 May 2026 (at [63], [70], [75] and [79]); Transcript in VID 228 of 2020 dated 22 October 2020 at T3.8–37 (Exhibit A, p 4205); email from Mr Mawhinney to Anderson J’s Associate dated 20 October 2020 (Exhibit A, p 4378); email from Mr Mawhinney to Anderson J’s Associate dated 16 November 2020 (Exhibit A, p 4380); T14.17–18.24.

91    The second (and important) finding concerns Mr Mawhinney’s state of knowledge at the time the Companies elected to prosecute the appeal. In the Affidavit of James Peter Mawhinney sworn 15 May 2026 (at [118]), he deposes that:

Although I do not waive privilege over the advice which was given to the Defendants at the time, I confirm that it is the case that the Defendants were not advised that they should apply under r 39.05 to set aside the orders made on 23 March 2021 until 2026, at which point this application was made.

92    This economical evidence is notable as much for what it does not say as for what it does. It does not state that Mr Mawhinney was unaware, at the time the appeal was prosecuted, that an application under FCR 30.21(2)(a) and FCR 39.05(a) was available. Nor does it suggest that he understood an appeal to be the only procedural course available by which the Liability Orders might be challenged. The evidence is confined to the narrower proposition that he was not advised that the Companies should pursue an application under FCR 39.05(a) until 2026.

93    Although notable for its absence in the evidence adduced in chief by the Companies, during the hearing, it became apparent that the possibility of bringing an application under the FCR was expressly considered by senior counsel for the Companies before the appeal was heard. After I raised the state of the evidence on this point during argument on the application before me, it emerged from a review of the whole of the Full Court transcript (rather than excerpts) that after the luncheon adjournment during the hearing before the Full Court, one of the senior counsel then appearing for the Companies said (of the prospect of moving under the FCR to set aside the Liability Orders) that: “we did look at that very point and came to the view that it’s not available to us”, and then confirmed that “the point was considered”: Transcript of Full Court hearing dated 23 August 2022 at T97.6–11 (Exhibit B).

94    In the light of this, I put to senior counsel for the Companies that “the alternative courses were considered, and it was decided not to go ahead with that and proceed down the appeal path”. Senior counsel answered, “Yes, your Honour”, and explained that the transcript had been located over the luncheon adjournment: T64.7–20.

95    Accordingly, I find that the decision to prosecute the appeal rather than invoke FCR 30.21(2)(a) and FCR 39.05(a) was not made in ignorance. It was a deliberate forensic decision made with the benefit of highly skilled legal representation to pursue an appeal rather than an application under FCR 30.21(2)(a) and FCR 39.05(a) because the former course maximised the prospects of success of the Companies in setting aside the Liability Orders. This is a world away from a case where one course was prosecuted in ignorance of the alternative procedural avenue now sought to be invoked.

96    The third finding concerns the nature of the appeal advanced by the Companies in the Companies Appeal Judgment. The grounds advanced before the Full Court (at 117–118 [28]–[33] per Jagot, O’Bryan and Cheeseman JJ) are instructive. A number of those grounds were directed to complaints concerning the admission and use of evidence at the liability hearing before Anderson J in circumstances where no legal representative appeared on behalf of the Companies. A consequence of non-appearance, of course, was that no objection had been taken to the admission of the relevant evidence.

97    The significance of that procedural history lies not in the disposition of the individual grounds, but in what it reveals about the forensic course which the Companies elected to pursue. The appeal was framed and argued on the footing that the correctness of the Liability Orders should be tested by the ordinary appellate process. Indeed, some of the grounds expressly sought to invoke the consequences said to flow from the Companies’ absence at the liability hearing by contending that evidence had been wrongly admitted or relied upon without objection. That was an orthodox appellate argument directed to alleged error in the conduct of the trial and necessarily reflected the considered forensic decision to pursue appellate review of the Liability Orders.

F     CONSIDERATION

98    The difficulty confronting the Companies lies at a fundamental level: it is that the Liability Orders which they now seek to reopen were not interlocutory or provisional but were final orders of the Court following trial.

99    Those orders were subsequently the subject of appellate review. The appellate process has now been exhausted and that forensic course was taken deliberately and on the basis of advice. That procedural history is not merely part of the background; it is the essential context in which the present application must be evaluated.

100    Criticism was levelled at ASIC for its submission that the appeal procedure and the procedure to set aside the Liability Orders under the FCR could be seen as similar procedural mechanisms to achieve the same end. But I think this criticism is misplaced.

101    It is unnecessary for present purposes to determine with any precision the conceptual differences between an appeal and an application under FCR 30.21(2)(a) and FCR 39.05(a). They are undoubtedly distinct procedural mechanisms, each governed by its own principles and directed to different questions. Nor is it necessary to determine whether, in every conceivable case, they are mutually exclusive.

102    The present case is concerned with a much narrower proposition. Here, each procedure represented a distinct means by which the Companies might seek relief against the Liability Orders. They were different procedural courses directed to substantially the same forensic objective, namely relieving the Companies from the consequences of those orders. In those circumstances, ASIC’s submission is not that the two procedures are identical, but that the Companies elected to pursue one available course to finality while declining to invoke the other, and only sought to do so after subsequent developments in separate litigation appeared to provide a more favourable forensic foundation.

103    The submission that there were different and distinct procedural courses available to the Companies, although they were alternatives ultimately directed to the same practical end, is reinforced by the historical development of appellate review.

104    As I raised during the hearing, the modern appeal is a comparatively recent statutory innovation. Prior to the reforms initiated by the Common Law Procedure Act 1852 (UK) and completed by the Judicature Acts of 1873 and 1875 (UK), the common law courts knew no appeal in the modern sense to a separate appellate court empowered to review the whole case in fact and law and give the judgment which ought to have been given. Instead, the common law courts exercised extensive powers of review through the court in banc before judgment was entered, including the power to grant new trials, correct errors occurring at trial and, where appropriate, substitute the judgment which ought to have been pronounced. Once judgment had been entered, review at common law was largely confined to the more limited writ of error.

105    Chancery, of course, developed along a different path, long employing a rehearing by way of a form of “appeal” before the Lord Chancellor, a procedure which ultimately provided the model for the modern appellate jurisdiction established by the Judicature Acts.

106    The significance of this history is not that an appeal and an application to reopen a judgment are identical; plainly they are not. Rather, both are confined exceptions to the ordinary principle that litigation, once finally determined, should remain at an end. The modern procedural rules to set aside final orders, developed in the wake of the creation of statutory rights of appeal, now prescribe one of the limited circumstances in which final orders may be reopened outside the appellate process. They do not contemplate that a litigant may elect to pursue an appeal to its conclusion, reserve an available application to reopen the judgment, and invoke that jurisdiction only after subsequent developments are thought to have improved the prospects of success.

107    That conclusion is consistent with one of the fundamental characteristics of the judicial process, namely that litigation, absent truly exceptional circumstances, must at some point come to an end. FCR 30.21(2)(a) and FCR 39.05(a) are not to be understood as conferring a general supervisory jurisdiction enabling parties, after they have exhausted their appellate rights, to reopen litigation because another forensic opportunity has presented itself or because subsequent events are said to make a different argument available.

108    The fact that the ordinary processes by which alleged error in the Liability Judgment could be corrected have therefore been invoked and completed fundamentally distinguishes the present case from one in which an application is made to reopen proceedings before appellate rights have been exercised or while the litigation remains incomplete.

109    The Companies answer ASIC’s submission by pointing out, correctly, that the Button J Judgment upon which they now principally rely did not exist at the time the Companies’ appeal was heard or determined. It follows, they submit, that they cannot be criticised for having failed to rely upon the Button J Judgment, which had not then been delivered.

110    This submission, however, does not answer ASIC’s central point. The procedural avenue now relied upon was available throughout. The circumstance said to justify the invocation of FCR 30.21(2)(a) and FCR 39.05(a), namely that the liability hearing proceeded in the Companies’ absence, was known from the outset. Having made their forensic election to eschew the course they now seek to invoke because of a want of perceived merit in doing so, they allowed the appeals and the remitted Mawhinney Proceeding to run their course. It was only after delivery of the Button J Judgment, thereby providing what the Companies contend is compelling evidence of an arguable defence, that they sought to reopen the Liability Orders. It is that sequence of events, dictated by forensic choices made by the Companies, which lies at the heart of the application.

111    ASIC submits, correctly in my view, that FCR 30.21(2)(a) and FCR 39.05(a) are not designed to provide a mechanism by which parties may revisit concluded litigation because, with the benefit of hindsight or subsequent developments, they now perceive a different or more attractive forensic path. That conclusion applies a fortiori where they have previously considered the alternative course and rejected it as unavailable.

112    That conclusion is reinforced when regard is had to the purpose served by the relevant provisions themselves. FCR 30.21(2)(a) and FCR 39.05(a) are directed to a particular species of injustice. Their evident purpose is to permit the Court, in an appropriate case, to relieve against the consequences of orders made in the absence of a party by restoring the opportunity for that party to place before the Court evidence or arguments which could and should have been advanced at the original hearing. The present application is of an entirely different character. The central matter now relied upon is not evidence or an argument which existed at the time of the liability hearing but which, because of the Companies’ absence, was not placed before Anderson J. It is the Button J Judgment, delivered years later in the remitted Mawhinney Proceeding, following a different hearing and upon the evidence and submissions advanced in that proceeding. Although there is considerable similarity between the allegations and evidence before Anderson J and Button J, it puts the matter too highly to say that the material before their Honours was identical: Affidavit of James Peter Mawhinney sworn 15 May 2026 (at [17(b)]); T75.27–76.28.

113    The above reasoning is sufficient to determine the application adversely to the Companies, but there are several other discretionary considerations which fortify my conclusion that the relief should be refused.

114    First, this is not a case where the Companies were unable to defend the proceeding. The evidence establishes that a decision was made to deploy scarce resources to other priorities. This is not the case of an impecunious litigant for whom obtaining representation was impossible; a commercial decision was made to allocate (albeit limited) resources in a manner thought more desirable.

115    Secondly, although I am prepared to accept for the purposes of the present applications that the Companies have demonstrated an arguable defence in respect of a contravention insofar as it based upon the making of Bank Term Deposit Representation, this conclusion only goes so far. It does not extend to the balance of the case. Button J found that the Repayment Representation, No Risk of Default Representation and Security Representation were made: Button J Judgment (at [732]–[734], [770]–[773], [850]–[856]). Although aspects of the Button J Judgment are under appeal, I was not taken to any ground or material demonstrating an arguable (let alone substantial) basis for impugning those findings. The Button J Judgment is not to be treated as provisional merely because an appeal is pending. The present case is therefore to be distinguished from one in which there is a clear arguable defence to all claims made against the moving party.

116    Thirdly, even leaving aside the second point, the asserted inconsistency between the orders made by Liability Judgment and the orders made by Button J Judgment do not carry the Companies as far as they submit. As noted above, those judgments concerned different parties and were delivered following different hearings and on evidence that was not identical. Indeed, the Companies acknowledged that the findings concerning the other three representations were made on different factual material: Affidavit of James Peter Mawhinney sworn 15 May 2026 (at [17(b)]); T75.27–76.28. The Button J Judgment may inform the assessment of an aspect of arguability, but it does not create a necessity to reopen orders made in the earlier proceeding and affirmed on appeal on the basis that the extant final orders in the different cases are, as was suggested, so irreconcilable that allowing them to stand would be an affront to principled administration of justice.

117    Fourthly, the delay is also significant. The Companies attempt to explain the delay by contending that the Companies Appeal Judgment merely identified the availability of FCR 30.21(2)(a) and FCR 39.05(a), whereas the principal matter upon which they now rely (the Button J Judgment) did not come into existence until considerably later. As I have already noted, that explanation does not overcome the fundamental difficulty that the circumstance said to justify the invocation of the relevant provisions of the FCR had always been known. Leaving aside the fact that the course now embraced was initially considered and dismissed with the benefit of the advice of senior counsel in advance of the appeal, at the very least, the Companies could have turned their minds again to the availability of the reopening course when it was referred to in the Companies Appeal Judgment. Awaiting the result of the remitted Mawhinney Proceeding and only acting belatedly when being confronted with statutory demands, is not conduct consistent with the facilitation of the overarching purpose.

118    The Companies correctly emphasise that the overarching purpose requires the just resolution of disputes, but that is not the whole of the statutory command. Reopening would necessarily occasion further cost and delay. Even allowing for the absence of identified evidentiary prejudice, the result the Companies seek would not best promote the just, quick, inexpensive and efficient resolution of the dispute.

119    Fifthly, although not as important as the preceding points, there is a further complication with the relief that was sought by the Companies. As noted above, the Companies sought only a stay, and not the setting aside, of the Penalty Orders. A pecuniary penalty is a debt payable to the Commonwealth under s 12GBCB(1) of the ASIC Act and, by s 12GBCB(2), the debt arising from the order is taken to be a judgment debt. The doctrine of merger is a substantive rule as to the effect of a judgment. In its ordinary operation, it treats a cause of action as extinguished once judgment is given, leaving the successful party with rights upon the judgment. A stay does not expunge or set aside the Penalty Orders. They remain in place as an order of a superior court of record and, by statute, have the effect of a judgment.

120    This seems to me to give rise to a real question whether rights embodied in those coercive orders, which remain on the record of the Court, could simply be re-agitated as was contemplated by the interlocutory application of the Companies. The issue was raised at the hearing: T80.28–81.1.

121    It is, however, unnecessary to determine this question. I am prepared to decide the applications on the basis that, if I had otherwise been persuaded to set aside the Liability Orders, it would have been open to set aside the Penalty Orders under FCR 1.32 and the Court’s implied power to control its own process (although I am unsure whether the Companies belatedly embracing such a course would have met opposition). Had that course become material, further submissions may have been required.

122    Sixthly, there is no reason to approach these questions differently because the successful litigant happens to be ASIC. Section 64 of the Judiciary Act 1903 (Cth) reflects that, in litigation involving the Commonwealth or one of its authorities, the rights of the parties are, as nearly as possible, to be the same as in a suit between subject and subject. The Court is not concerned with whether the successful party is a private litigant, a statutory regulator or the Crown. The principles governing finality, the exercise of discretionary powers and the conduct of litigation are indifferent to the identity of the successful party. ASIC is entitled to the same expectation of finality as any other litigant who has obtained final judgment after the appellate process has run its course.

123    In short, the present case is not one in which an alleged procedural injustice escaped correction because no procedural avenue existed by which it might be addressed. On the contrary, the Companies had the benefit of legal representation throughout the appellate process and the ordinary mechanisms by which alleged error or unfairness might be corrected. The present application is therefore not filling some procedural lacuna. It is notable, but unsurprising, that no authority was identified in which FCR 30.21(2)(a) or FCR 39.05(a), or a cognate rule in another court, had been employed to reopen final orders after those orders had been affirmed on appeal and the appellate process had concluded.

124    The principle of finality reflects important public and private interests. Successful litigants are entitled to proceed upon the footing that judgments affirmed through the appellate process determine the controversy between the parties. The public interest in the efficient administration of justice, reflected in the overarching purpose identified by ss 37M and 37N of the FCA Act, would be significantly undermined were parties permitted to reserve arguments until developments in other proceedings suggested that a different forensic course might be advantageous.

G    CONCLUSION AND ORDERS

125    For the reasons explained above, the interlocutory application filed in the Companies Proceeding must be dismissed.

126    The fate of the Statutory Demand Proceeding follows from the dismissal of the reopening application. The originating process in that proceeding must therefore also be dismissed.

127    There is no reason why costs should not follow the event. ASIC has been wholly successful in resisting both applications. The proceedings have required ASIC to respond to an attempt to reopen litigation which had long since become final and to defend the validity of statutory demands which depended entirely upon the outcome of that application. In those circumstances, the ordinary rule should apply.

128    Following delivery of these reasons, senior counsel for the Companies applied under s 459F(2)(a)(i) of the CA for an extension of the period for compliance with each statutory demand. ASIC did not oppose the application. I will extend the period for compliance with each demand until 21 days after the date of the orders.

129    Given the service of the statutory demands, it was necessary to determine the applications with celerity. The Court’s ability to do so was greatly assisted by the thorough and helpful oral and written submissions advanced on behalf of both the Companies and ASIC.

Associate:

Dated: 5 August 2026