Federal Court of Australia

Gray (liquidator) v Marshall Investments GCP Pty Ltd, in the matter of Mawson Infrastructure Group Inc (in liq) (No 2) [2026] FCA 1066

ORDERS

THE COURT ORDERS THAT:

1.    The application by Mawson Infrastructure Group Inc (in liq) for the orders sought in [5] of the reasons for judgment is dismissed.

2.    Mawson Infrastructure Group Inc (in liq) pay the costs of the third defendant in relation to that application.

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

REASONS FOR JUDGMENT

DOWNES J:

1    The relevant background is contained in Gray (liquidator) v Marshall Investments GCP Pty Ltd, in the matter of Mawson Infrastructure Group Inc (in liq) [2026] FCA 848 (Mawson No 1). Defined terms in that judgment will be used in these reasons.

2    At the hearing of other interlocutory applications in this proceeding on 13 July 2026, Ms Scott appeared on behalf of Mawson.

3    By an application which it sought to be heard on 13 July 2026, Mawson applied to be joined as a plaintiff nunc pro tunc to the proceedings, and for Orders 4 (insofar as it applies to Mr Philip Stanley) and 6 of the “Judgment dated 30 June 2026 be stayed pending the outcome of any appeal”. The first order was sought so that Mawson could “re-enliven” the application to terminate the winding-up of itself pursuant to s 482(1) of the Corporations Act 2001 (Cth).

4    The other parties at the hearing were not in a position to present arguments concerning this application. Because of this and because Mawson proffered a number of different forms of order by way of oral submissions at the hearing, it was determined that Mawson would provide a finalised form of order that it sought along with submissions, that any party which wished to be heard on that form of order provide submissions and that the application be determined on the papers.

5    Mawson provided two forms of order to my chambers on 13 July 2026 as follows:

(1)    Version 1:

(a)    Order 4 of the Orders dated 30 June 2026 be set aside, insofar as it applies to Mr Philip Stanley.

(b)    Big Digital Energy, Inc.(formerly Mawson Infrastructure Group Inc.) be joined as a defendant, nunc pro tunc, to the proceedings.

(c)    Order 6 of the Orders dated 30 June 2026 be stayed pending the outcome of any further hearing before Downes J.

(d)    The proceedings be listed for hearing before Downes J on [22] July 2026.

(2)    Version 2 (in the event that the termination application would not be relisted as sought in version 1):

(a)    Order 4 of the Orders dated 30 June 2026 be set aside, insofar as it applies to Mr Philip Stanley.

(b)    Big Digital Energy, Inc. (formerly Mawson Infrastructure Group Inc.) be joined as a defendant, nunc pro tunc, to the proceedings.

(c)    Order 6 of the Orders dated 30 June 2026 be stayed pending the outcome of any appeal.

6    Mawson provided submissions to my chambers on 13 July 2026. W Capital filed submissions on 16 July 2026. Mawson filed submissions in reply on 22 July 2026.

7    On 15 July 2026, Judge Walrath (whose involvement in the US Proceedings is referred to in Mawson No 1 at [13]–[15]) wrote a letter to my chambers in light of the observations made at [20] of that decision, and for the purposes of communicating so as to achieve potential co-operation between our courts. A copy of that letter was provided to the parties, including Mawson, and they were asked whether there was any objection to the proposed communication. No objection was received, and as a result of further communications between the two courts, a joint case management hearing between the Federal Court and the US Bankruptcy Court will occur on 7 August.

Joinder of Mawson as a defendant

8    Mawson was given leave to appear as an interested party on 18 June 2026, which leave was not opposed, and has appeared at subsequent hearings as an interested party. Ms Scott, who appeared for Mawson, identified that she was appearing for “the directors of Mawson Infrastructure Group in the United States” and also stated that “I appear for one director in particular…[his] name, your Honour, is Phillip Stanley”.

9    In circumstances where Mawson has the ability to appear and be heard in these proceedings as an interested party, a question arises as to the utility of joining it as a defendant.

10    The utility, according to Mawson, is that it wishes to “re-enliven” the application to terminate the winding-up, which application was adjourned on 30 June 2026.

11    However, Mawson is in liquidation, and the termination application was brought by its liquidator under s 482(1) of the Corporations Act. Mawson (or any company which is in liquidation) does not have standing to bring such an application in its own right: see s 482(1A). Further, s 198G prevents an officer of the company from performing or exercising a function or power of that office while a company is under external administration.

12    Because of this, Mawson advances a number of contentions.

13    First, it submits that its directors can cause Mawson to bring applications in Australia because s 198G does not apply to a Part 5.7 body, which is not a “company” for the purposes of s 198G.

14    It submits that “Mawson is a “registered foreign company” (ie it is a body corporate that is incorporated outside Australia but registered under Division 2 of Part 5B.2). [A] “registered foreign company” is not a “company” for the purposes of Part 2D.1 of the Corporations Act. Therefore, there is no prohibition on the directors of Mawson exercising their powers as directors, notwithstanding that Mawson is currently being wound up in Australia. That position – which is clear on the authorities – makes intuitive sense because a foreign corporation will have an existence in its place of incorporation overseas and it would be an odd result if the powers of its directors to exercise functions in that place of incorporation were superseded and prohibited by the appointment of an officer in Australia”.

15    There is no authority cited by Mawson which stands for the proposition which it advances.

16    Contrary to its submissions, Mawson is a company under external administration within the meaning of s 198G. That is because “[c]ompany” is defined in s 9 to include “in Parts 5.7B and 5.8…a Part 5.7 body…” and external administration is defined in s 5-15 of Schedule 2 (the Insolvency Practice Schedule (Corporations)) (Insolvency Practice Schedule) as: “A company is taken to be under external administration if: … (c) a liquidator has been appointed in relation to the company…”.

17    Chapter 5 of the Corporations Act applies to a Part 5.7 body wound up under s 583: see ss 582 and 583. Further, Part 5.7 “has effect in addition to, and not in derogation of...any provisions contained in this Act…and the liquidator or Court may exercise any powers or do any act in the case of Part 5.7 bodies that might be exercised or done by him, her or it in the winding-up of companies”: s 582(1).

18    Further, this is not an “odd result”. The fact that Mawson, through its directors, continues to act in the United States is because the winding-up under s 583(d) of the Corporations Act “must deal only with the affairs of the body outside its place of origin”. It therefore does not purport to encroach on the ability of directors causing the company to act in its place of origin.

19    As s 198G applies to the directors of Mawson in Australia, it follows that, absent leave (which has not been sought), the directors cannot cause Mawson itself to bring an application to terminate the winding-up of Mawson (or otherwise “re-enliven” the liquidator’s application).

20    Second, Mawson submits that to the extent that s 482 applies to a Part 5.7 body, it applies to a Part 5.7 body with such adaptations as are necessary, in accordance with s 583, and that a necessary adaptation to s 482(1A) is to permit it to have standing to bring or agitate the termination application as this is a necessary adaptation in the circumstances of this case.

21    However, again, no case is cited by it which stands as authority for this proposition and in which concerned a Part 5.7 body. Nor does Mawson explain why it is necessary to adapt s 482(1A) in this manner.

22    Mawson (insofar as it continues to operate in the United States) can seek to be heard on any formal applications which the liquidator brings, such as the liquidator’s application to terminate the winding-up. It can also assist the liquidator’s application by providing evidence to support that application, being something which it has not done to date and which was a key reason for adjourning the application: see Mawson No 1 at [28], [30(a)], [30(b)].

23    To the extent that the directors of Mawson are otherwise limited in that they cannot cause Mawson to take steps in Australia because s 198G operates, that is not a reason to read an entire new sub-provision into s 482(1A). Rather, it is a consequence of the registration of Mawson in Australia as a Part 5.7 body and subjecting it to the operation of Australian laws, including the Corporations Act.

24    Third, Mawson submits in reply that, as it is an interested party, it can seek to have the termination application relisted for the purposes of considering further evidence, being the transcript of the US proceedings on 8 July 2026. That submission may be accepted, especially as the orders included liberty to apply, but seeking a relisting to consider additional and new evidence may occur without the need to join Mawson as a defendant.

25    For these reasons, there is no utility in joining Mawson as a defendant nunc pro tunc to the proceedings, being the order which it now seeks. It follows that it will not be joined as a defendant.

26    As to the proposed re-listing of the termination application, that application has been overtaken to some extent by the proposed co-operation between the respective courts in the US and Australia such that the timing of any relisting of that application will be affected (at least in part) by what is decided on 7 August 2026.

Setting aside order 4

27    Mawson seeks an order that “Order 4 of the Orders dated 30 June 2026 be set aside, insofar as it applies to Mr Philip (or Phillip) Stanley”. Curiously, the order is not sought to be set aside insofar as it relates to the “any other director of Mawson”.

28    Mawson submits that the solicitors engaged in Australia do not act for Mr Stanley. However, it is a remarkable notion that Mawson seeks to appear in an Australian court by its directors but when those directors are ordered to do something in their capacity as directors (as was the case by order 4, which applies to all directors), it is suggested that they are not represented.

29    This is especially when the email sent from my chambers prior to the final day of hearing asked the parties to address the Court regarding “whether the directors of [Mawson] should be ordered to provide an affidavit deposing to the assets of that company in Australia and their location and value”. No submission was made that counsel for Mawson could not make submissions on that topic (and, indeed, submissions were made including the one identified above).

30    Mawson also submits that I had no power to make the order because s 475(1) of the Corporations Act only applies to persons who are directors at the date of the winding-up order. That submission is not accepted as such power is available through (at least) s 90-15 of the Insolvency Practice Schedule.

Stay of order 6

31    For the same reasons that the directors cannot cause Mawson to apply to terminate the winding-up of Mawson, they cannot bring an application in Mawson’s name for a stay of order 6 without leave of the Court.

32    Further, the submissions provided by Mawson did not address the application for the stay, and so I decline to make this order. In any event, such a stay is unnecessary having regard to r 40.13 of the Federal Court Rules 2011 (Cth).

Conclusion

33    The application by Mawson will be dismissed, with costs to follow the event.

Associate:

Dated:    3 August 2026