Federal Court of Australia

Australian Securities and Investments Commission v Falcon Capital Limited (in liquidation) (No 4) [2026] FCA 1095

ORDERS

THE COURT ORDERS THAT:

1.    The dates in:

(a)    paragraph 13 of the orders made on 23 June 2025; and

(b)    paragraph 8 of the orders made on 26 June 2025,

be further extended to 4.00 pm on 30 November 2026.

2.    There be liberty to apply.

3.    Costs be reserved.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    These reasons deal with an informal application by the plaintiff (ASIC) for an extension of a travel restraint order and a freezing order in relation to the third defendant, Mr Simon Selimaj.

2    Briefly, the procedural background is as follows:

(a)    On 23 June 2025, on the ex parte application of ASIC, pursuant to s 1323 of the Corporations Act 2001 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth), a travel restraint order and a freezing order were made in respect of Mr Selimaj.

(b)    On 26 June 2025, the matter returned to Court on an inter partes basis. A new travel restraint order and a new freezing order were made in respect of Mr Selimaj, with the orders lasting until 4.00 pm on 27 February 2026.

(c)    On 22 August 2025, I dismissed an application by Mr Selimaj to set aside the travel restraint order and the freezing order: Australian Securities and Investments Commission v Falcon Capital Ltd (No 2) [2025] FCA 1034 (the August 2025 Reasons).

(d)    On 23 December 2025, I made orders by consent to extend the travel restraint order and the freezing order to 4.00 pm on 24 April 2026.

(e)    On 21 April 2026, I made orders by consent to extend the travel restraint order and the freezing order to 4.00 pm on 31 July 2026.

3    By email dated 23 July 2026, ASIC made an informal application for extension of the travel restraint order and the freezing order until 4.00 pm on 30 November 2026.

4    At 2.15 pm on 31 July 2026, the hearing of ASIC’s application took place. In relation to the travel restraint order, I expressed my conclusion during the hearing and said that I would publish my reasons later. My conclusion was that I would extend the travel restraint order until 4.00 pm on 14 August 2026 (but not until 30 November 2026). Orders were made to give effect to that conclusion. My reasons are set out below.

5    In relation to the freezing order, I said that I needed more time to review the material. I therefore extended the freezing order until 5.00 pm on 7 August 2026, with a view to making a decision on that aspect of the application before then. My conclusion in respect of that application is that the freezing order should be extended to 4.00 pm on 30 November 2026. My reasons for reaching that conclusion are set out below.

6    The evidence before the Court in relation to these applications is as follows:

(a)    ASIC relies principally on an affidavit of Mr Brody Wons dated 23 July 2026 (the Ninth Wons Affidavit). ASIC also relies on earlier affidavits of Mr Wons filed in the proceeding, including his affidavit dated 20 June 2025 (the Fifth Wons Affidavit) and his affidavit dated 29 July 2025 (the Seventh Wons Affidavit).

(b)    Mr Selimaj (who represented himself on the present application) relies on his affidavit dated 29 July 2026.

7    These reasons should be read together with the August 2025 Reasons.

Travel restraint order

8    The following are my reasons for extending the travel restraint order until 4.00 pm on 14 August 2026 (but not until 30 November 2026, as sought by ASIC).

9    In circumstances where the extension of the travel restraint order is opposed, it is necessary to consider afresh whether ASIC has established a proper basis to make the travel restraint order.

10    The Ninth Wons Affidavit establishes that ASIC’s investigation is ongoing, that it has examined Mr Selimaj on three days, and that it proposes to examine him again on 13 August 2026. No further examinations of Mr Selimaj beyond 13 August 2026 are currently scheduled. Mr Wons states in para 63 of that affidavit that ASIC considers that the examination of certain individuals “may lead to further investigation requiring further examinations of Mr Selimaj”.

11    In his affidavit, Mr Selimaj offered to provide an undertaking to the Court that he will give notice to ASIC before travelling internationally.

12    The applicable principles are identified at [32]-[34] of the August 2025 Reasons:

32    The principles applicable to the making of travel restraint orders under s 1323(1) are well established. I dealt with these principles recently in Australian Securities and Investments Commission v Merhi [2025] FCA 829 (Merhi) at [68]-[69], by reference to the judgment of O’Callaghan J in Australian Securities and Investments Commission v Guo (No 2) [2024] FCA 251 at [25]-[32]. I refer to and adopt that statement of the applicable principles.

33    In the present case, as in Merhi, I would highlight the following aspects of the principles:

(a)    there is an element of risk assessment and risk management in the judgment the court is called on to make;

(b)    it is a serious matter to restrain a person from travelling internationally; and

(c)    the private right to travel may be outweighed by the public interest in ASIC being able to pursue its investigation.

34    Further, the five factors referred to by Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (ActiveSuper) are relevant.

13    The issue to be determined is whether it is necessary or desirable to extend the travel restraint order as sought by ASIC for the purpose of (in summary) protecting the interests of a person to whom Mr Selimaj may become liable to pay compensation or damages.

14    In the August 2025 Reasons, I addressed each of the five factors referred to by Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (see the August 2025 Reasons at [36]-[40]). In relation to the first, third, fourth and fifth factors, the analysis now is much the same as it was in August 2025. However, in relation to the second factor – the length of time that Mr Selimaj has been subject to a travel restraint order – the analysis is now quite different. Mr Selimaj has now been subject to the travel restraint order for over a year.

15    Given that the examination on 13 August 2026 is not long away, I consider it appropriate to keep the travel restraint in place until shortly after that date (say, 14 August 2026). Mr Selimaj did not oppose this. However, having regard to the circumstances that exist now, including the undertaking proffered by Mr Selimaj to provide ASIC with 14 days’ written notice before travelling internationally, I am not satisfied that it is appropriate to keep the travel restraint in place beyond that date.

16    It was for these reasons that I extended the travel restraint order until 4.00 pm on 14 August 2026.

Freezing order

17    ASIC seeks an extension of the freezing order until 30 November 2026.

18    In circumstances where the extension of the freezing order is opposed, it is necessary to consider afresh whether ASIC has established a proper basis to make the freezing order.

19    The freezing order is sought on an interim basis under s 1323 of the Corporations Act and/or s 23 of the Federal Court of Australia Act.

20    In the August 2025 Reasons at [44], I referred to and adopted my statement of the applicable principles in Australian Securities and Investments Commission v Remedy Housing Pty Ltd [2021] FCA 673 (Remedy Housing) at [12]-[15]. I adopt those principles again for the purposes of the present application. Further, the considerations in [16] of Remedy Housing also apply in the present case.

21    In the August 2025 Reasons, I stated at [45]-[46]:

45    Applying those principles to the circumstances of the present case, I am satisfied that it is necessary or desirable to make freezing orders as sought by ASIC for the purpose of protecting the interests of investors with potential claims. The alleged contraventions are serious in scale and nature. The affidavit evidence relied on by ASIC raises serious concerns about the potential dissipation of assets: see, eg, the inflows and outflows of bank accounts associated with Mr Selimaj set out at paragraph 22 of the Seventh Wons Affidavit.

46    To the extent that Mr Selimaj submits that he has very little in the way of assets, I do not consider this to be a reason not to make the freezing orders.

22    In opposition to the present application, Mr Selimaj relies on a large body of material (annexed to his affidavit dated 29 July 2026) to support the proposition that he did not engage in any wrongdoing. However, it is not feasible on an application such as this to test the strength or otherwise of that material.

23    Notwithstanding that material, it remains the case that ASIC is concerned that Mr Selimaj may have contravened several provisions of the Corporations Act: see the Ninth Wons Affidavit at paras 26-44. Further, ASIC is concerned that significant payments were made to Mr Selimaj and that there does not appear to be a legitimate basis for those payments: see the Ninth Wons Affidavit at paras 45-46 and Part D of the Fifth Wons Affidavit. There appears to be at least some material to support ASIC’s concerns (but noting that the material has not yet been tested). If claims are brought against Mr Selimaj and established, he may be liable to pay compensation to affected investors.

24    The material before the Court includes a report of Mr Paul Allen, the receiver of the property of Mr Selimaj (the Receiver), dated 20 April 2026 (the Receiver’s Report) (tab 29 of Exhibit BW-11 to the Ninth Wons Affidavit). In para 1.5, the Receiver states that, after his appointment, he made several requests to Mr Selimaj seeking information and documents, but that Mr Selimaj “was not forthcoming in providing all of the requested information”. In para 4.8, the Receiver states that, despite numerous requests, Mr Selimaj and his lawyers “failed to provide all the information requested in [the Receiver’s] letter dated 17 September 2025”. In para 4.10 of the report, the Receiver refers to a meeting with Mr Selimaj and his solicitors on 22 October 2025. The Receiver states that Mr Selimaj “ended the meeting prematurely” and, as a result, the Receiver “was not able to ask Mr. Selimaj the majority of the questions [that the Receiver] had planned to ask him”. In para 16 of his report, the Receiver states that his investigations to date “have been significantly impeded by either a delay in receiving information from Mr. Selimaj or him not providing the information at all”. These aspects of the Receiver’s Report raise a concern as to whether a full picture of Mr Selimaj’s property has been obtained. This supports the extension of the freezing order.

25    In para 5.1.3(b) and (c) of the Receiver’s Report, the Receiver sets out a series of significant payments from Mr Selimaj’s bank accounts to a related party in the period December 2024 to March 2025. This material raises a concern that there may have been dissipation of Mr Selimaj’s assets. I refer also to the evidence at para 76(b) of the Ninth Wons Affidavit which raises a concern about dissipation of assets. This supports the extension of the freezing order, to protect against any further dissipation.

26    At the hearing, Mr Selimaj submitted that he has no substantial assets and therefore it is pointless to keep the freezing order in place. However, in light of the matters set out above, there is a lack of clarity about whether or not Mr Selimaj has other assets.

27    I note that, at the hearing, Mr Selimaj submitted that the continued operation of the freezing order was imposing hardship on him. I raised with him whether the ‘carve outs’ for ordinary living expenses and legal expenses were sufficient. It did not appear to be the case that the carve outs are insufficient. In any event, it would be open to Mr Selimaj to apply to have the carve outs increased.

28    In light of the above, I consider it necessary or desirable to extend the freezing order to 4.00 pm until 30 November 2026 for the purpose of protecting the interests of aggrieved persons as referred to in s 1323(1) of the Corporations Act.

Associate:

Dated:    7 August 2026