Federal Court of Australia

Fitzgerald, in the matter of Fitzgerald [2026] FCA 1154

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to file an amended originating process in the form annexed to the affidavit of Ingrid Archer affirmed 10 August 2026 at Annexure “IMSA-07”.

2.    The applicant file the amended originating process as soon as practicable.

3.    Pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) (Corporations Act), it be declared that this proceeding is not invalid by reason of the applicant’s failure to lodge the notice prescribed by s 206G(2) of the Corporations Act.

4.    Pursuant to s 312(5)(a) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), it be declared that this proceeding is not invalid by reason of the applicant’s failure to lodge the written notice required by s 126J(3)(a) of the SIS Act.

5.    Pursuant to s 206G(1)(c) of the Corporations Act, the applicant have leave to manage Fitzgerald-Cuskelly SMSF Pty Ltd (ACN 604 357 959) (SMSF Trustee), subject to the condition that, until such time as the applicant ceases to be a director of the SMSF Trustee or is no longer disqualified from managing corporations, the SMSF Trustee not engage in any activity other than:

(a)    acting as trustee of the Fitzgerald-Cuskelly Superfund (Fund); and

(b)    doing things reasonably incidental to so acting.

6.    Pursuant to s 206G(1)(c) of the Corporations Act, the applicant have leave to manage Fitzgerald-Cuskelly (Yeerongpilly) Property Pty Ltd (ACN 653 225 166) (Yeerongpilly Custodian Company), subject to the condition that, until such time as the applicant ceases to be a director of the Yeerongpilly Custodian Company or is no longer disqualified from managing corporations, the Yeerongpilly Custodian Company not engage in any activity other than:

(a)    acting as trustee of the Fitzgerald-Cuskelly (Yeerongpilly) Property Trust;

(b)    acting as custodian in relation to the Fund under the limited recourse borrowing arrangement concerning the property held through that trust; and

(c)    doing things reasonably incidental to so acting.

7.    Pursuant to s 206G(1)(c) of the Corporations Act, the applicant have leave to manage Fitzgerald-Cuskelly (Lyric) Property Pty Ltd (ACN 617 760 219) (Lyric Custodian Company), subject to the condition that, until such time as the applicant ceases to be a director of the Lyric Custodian Company or is no longer disqualified from managing corporations, the Lyric Custodian Company not engage in any activity other than:

(a)    acting as trustee of the Fitzgerald-Cuskelly (Lyric) Property Trust;

(b)    acting as custodian in relation to the Fund under the limited recourse borrowing arrangement concerning the property held through that trust; and

(c)    doing things reasonably incidental to so acting.

8.    Pursuant to s 126J(1)(b) of the SIS Act, the applicant not be a disqualified person for the purposes of the SIS Act, subject to the condition that, until such time as the applicant is discharged from bankruptcy, the applicant must not be, or act as:

(a)    the trustee, investment manager or custodian of any superannuation entity; or

(b)    the responsible officer of a body corporate that is a trustee, investment manager or custodian of any superannuation entity,

except that subparagraph (b) does not prevent the applicant from acting as a director of:

(c)    the SMSF Trustee, while the SMSF Trustee acts solely in the capacities described in paragraph 5 herein; and

(d)    the Yeerongpilly Custodian Company, while the Yeerongpilly Custodian Company acts solely in the capacities described in paragraph 6 herein; and

(e)    the Lyric Custodian Company, while the Lyric Custodian Company acts solely in the capacities described in paragraph 7 herein.

9.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Mr Brian Thomas Fitzgerald, who is an undischarged bankrupt, seeks leave to manage the corporate trustee of his and his wife’s self-managed superannuation fund (the Fund) and two other companies which hold properties as custodians for the Fund. The application is brought under s 206G(1)(c) of the Corporations Act 2001 (Cth) and s 126J(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act).

2    In addition, orders are sought under s 1322(4)(a) of the Corporations Act and s 312(5)(a) of the SIS Act to cure a procedural irregularity in the proceeding.

3    The application has been served on the trustee in bankruptcy of Mr Fitzgerald’s bankrupt estate (the Trustee), the Commissioner of Taxation (the Commissioner) and the Australian Securities and Investments Commission (ASIC). The Trustee, the Commissioner and ASIC have indicated that they do not oppose the orders.

4    Ms Maryrose Cuskelly, the wife of Mr Fitzgerald and the other member of the Fund, supports the application.

5    The following affidavit material is before the Court:

(a)    an affidavit of Mr Fitzgerald affirmed 15 June 2026 (the Fitzgerald Affidavit);

(b)    an affidavit of Ms Cuskelly affirmed 15 June 2026; and

(c)    four affidavits of Ms Ingrid Archer, a solicitor employed by SLF Lawyers, the solicitors acting for Mr Fitzgerald, dated 6 July 2026, 10 August 2026, 13 August 2026 and 14 August 2026.

Background facts

6    The following background facts are drawn from the Fitzgerald Affidavit.

The Marlo Group

7    In 2006, Mr Fitzgerald and two other persons established an IT consulting business as a partnership known as The Marlo Group. On around 7 June 2011, that partnership was incorporated and the business was thereafter carried on by The Marlo Group Pty Ltd (in liquidation) (The Marlo Group). The Marlo Group operated a systems integration business primarily in Victoria, with some limited engagements in New South Wales.

8    Mr Fitzgerald was, at all material times until The Marlo Group was placed into liquidation, the Chief Technology Officer of The Marlo Group.

9    He was a Director of The Marlo Group from its registration date on 11 November 2011 until its administration. He was also the Secretary of The Marlo Group from 6 June 2024 until its administration.

10    From approximately 2023, The Marlo Group began to experience financial difficulty as a result of a combination of adverse commercial circumstances and financial pressures affecting its operations.

11    From November 2024, The Marlo Group engaged in negotiations for the sale of the entire business to Nagarro Pty Ltd (Nagarro), a subsidiary of a company listed on the German stock exchange but largely based in India. The agreed sale price was USD20 million, with USD10 million to be paid up front (the Upfront Payment) and a USD10 million ‘earn-out’ over a period of 24 months. The detailed mechanics of the earn-out were not finalised at the time, but were intended to be calculated by reference to The Marlo Group’s earnings before interest, tax, depreciation and amortisation.

12    In or about April 2025, after a successful due diligence, The Marlo Group and Nagarro entered into contract of sale negotiations for the sale of the business (the Proposed Contract of Sale).

13    Over a period of four months, the parties exchanged three versions of the Proposed Contract of Sale. At the same time, The Marlo Group was involved in legal proceedings in Australia, having been sued by Opus Recruitment Solutions Pty Ltd in relation to an invoicing dispute. The proceedings were commenced on or about 19 June 2024 in the County Court of Victoria (the Opus Proceedings).

14    The Marlo Group engaged solicitors, KCL Law, to defend the Opus Proceedings. It was not possible to resolve that dispute.

15    On a date in early July 2025, Nagarro withdrew from the negotiations and declined to execute the Proposed Contract of Sale.

16    Following the withdrawal of Nagarro from the Proposed Contract of Sale, The Marlo Group suffered immediate and substantial financial consequences, including:

(a)    the loss of the anticipated USD20 million sale proceeds;

(b)    the inability to repay monies that had been borrowed in anticipation of completion of the Proposed Contract of Sale; and

(c)    the significant deterioration in The Marlo Group’s financial position.

17    Prior to the collapse of the Proposed Contract of Sale, it had been the intention of The Marlo Group to discharge all creditor liabilities in full from the Upfront Payment.

18    In about July 2025, and after the Proposed Contract of Sale fell through, The Marlo Group obtained advice from its external accountants, Hopkins Group Pty Ltd (The Hopkins Group), to the effect that there was a risk that The Marlo Group was insolvent and, if it continued to trade, there was a risk that it might be trading whilst insolvent.

19    Acting on that advice, and in circumstances where the Proposed Contract of Sale had failed solely due to the withdrawal of Nagarro and no alternative funds could be secured, Mr Fitzgerald concluded that he was left with no alternative but to appoint a voluntary administrator to The Marlo Group.

20    On or about 10 July 2025, Mr Atle Crowe-Maxwell, of DBA Advisory, was appointed voluntary administrator of The Marlo Group (the Administrator).

The Fund

21    Fitzgerald-Cuskelly SMSF Pty Ltd (the SMSF Trustee) was incorporated and registered on 20 February 2015 with Mr Fitzgerald and his wife, Ms Cuskelly, as directors and shareholders.

22    The Company was incorporated for the sole purpose of acting as the corporate trustee for the Fund (the name of which is the ‘Fitzgerald-Cuskelly Superfund’), a self-managed superannuation fund.

23    The SMSF Trustee carries on no activity other than to act as trustee of the Fund.

24    The only role of the Fund is owning and managing Mr Fitzgerald’s and Ms Cuskelly’s retirement savings.

25    From their appointment as directors in February 2015 until his disqualification on 13 December 2025, Mr Fitzgerald managed the SMSF Trustee jointly with Ms Cuskelly without any issue. Ms Rachel Williams, currently the Managing Accounting Partner at The Hopkins Group, has supported them in all investment-related decisions and decisions related to the compliance of the Fund.

26    The SMSF Trustee has no employees. To the best of Mr Fitzgerald’s knowledge and belief, the SMSF Trustee has no creditors.

27    At all material times, the Fund entered into two limited recourse borrowing arrangements within the meaning of s 67A of the SIS Act for the purpose of acquiring real property.

28    In connection with those limited recourse borrowing arrangements, two corporate entities (the Custodian Companies) were established to act as custodians and trustees of bare trusts, holding legal title to the relevant properties on trust for the Fund until the relevant borrowings are repaid. Details about the Custodian Companies and the properties they hold are set out in paras 38-48 of the Fitzgerald Affidavit.

Mr Fitzgerald’s bankruptcy

29    The circumstances leading to Mr Fitzgerald’s bankruptcy are described in paras 49-63 of the Fitzgerald Affidavit.

30    Mr Fitzgerald had given personal guarantees in respect of certain loans to The Marlo Group. When The Marlo Group ran into financial difficulties, claims were made and proceedings were commenced against Mr Fitzgerald in respect of those guarantees.

31    By reason of those claims and proceedings, in or around August 2025, Mr Fitzgerald commenced discussion with his solicitors, as well as with Ms Williams from The Hopkins Group, in respect of a potential bankruptcy.

32    On around 12 December 2025, Mr Fitzgerald completed a Statement of Affairs and filed a Debtor’s Petition. His solicitor emailed these documents and the Trustee Consent to Act Declaration to the Australian Financial Security Authority.

33    On 13 December 2025, the Statement of Affairs and Debtor’s Petition were accepted by the Official Receiver and Mr Innes Cull of PKF Melbourne was appointed as the Trustee.

34    Mr Fitzgerald gives evidence in para 62 of his affidavit that, since the appointment of the Trustee, Mr Fitzgerald has always cooperated with and provided documents, material and information to the Trustee whenever requested to do so.

35    Mr Fitzgerald gives evidence in para 69 of his affidavit that he has not been convicted of any criminal or regulatory offence and has not been the subject of any regulatory or disciplinary action by ASIC or any other regulatory body.

Consequences if application not granted

36    The Fund holds the retirement savings of Mr Fitzgerald and Ms Cuskelly. Mr Fitzgerald understands that if he is not given leave to manage the relevant corporate entities comprising the Fund, the Fund would cease to satisfy the requirements of s 17A of the SIS Act (which requires each member of the Fund to be a director of the trustee company). As a result, he would be required to roll his superannuation interest out of the Fund.

37    Mr Fitzgerald considers that having to roll his superannuation balance out of the Fund would be adverse to the interests of him and Ms Cuskelly. Those adverse consequences are described in para 13 of Ms Cuskelly’s affidavit.

Applicable principles

38    Section 206B(3) of the Corporations Act provides that a person “is disqualified from managing corporations if the person is an undischarged bankrupt under the law of Australia”. Plainly, Mr Fitzgerald answers that description.

39    Section 206G of the Corporations Act provides:

206G    Court power to grant leave

(1)    A person who is disqualified from managing corporations may apply to the Court for leave to manage:

(a)    corporations; or

(b)    a particular class of corporations; or

(c)    a particular corporation;

if the person was not disqualified by ASIC.

(2)    The person must lodge a notice with ASIC at least 21 days before commencing the proceedings. The notice must be in the prescribed form.

(3)    The order granting leave may be expressed to be subject to exceptions and conditions determined by the Court.

Note:    If the Court grants the person leave to manage the corporation, the person may be appointed as a director (see section 201B) or secretary (see section 204B) of a company.

(4)    The person must lodge with ASIC a copy of any order granting leave within 14 days after the order is made.

(5)    On application by ASIC, the Court may revoke the leave. The order revoking leave does not take effect until it is served on the person.

40    The principles applicable to the application for leave under s 206G were discussed by Jackson J in Re Roberts [2025] FCA 957; 176 ACSR 644 at [20]-[23], referring to Re Macalister [2021] FCA 1455 at [21] per Banks-Smith J. In Re Macalister, Banks-Smith J stated at [21]:

Having regard to all of those principles, it can be seen that the main consideration in applications under s 206G(1)(c) of the Corporations Act … is therefore the interests of third parties; the shareholders, creditors and employees of the relevant company, and the public at large (Frigger at [34]). As discussed in GFD v BJD [2018] WASC 374 at [11]-[12], other considerations may include:

(a)    the protection of the public and any shareholders;

(b)    the nature of the disqualification;

(c)    the applicant’s character and conduct since the disqualification;

(d)    the structure of the company and the nature of the business;

(e)    the potential for repetition of contraventions;

(f)    the risk to survival of the company;

(g)    the effect on any third parties of the company being unable to have the benefit of the applicant’s knowledge; and

(h)    insofar as bankruptcy is involved, the circumstances in which the debts giving rise to the bankruptcy were not paid and the extent to which an applicant cooperated with the trustee in bankruptcy.

41    Section 120(1)(b) of the SIS Act provides that, for the purposes of Pt 15 of that Act, an individual is a disqualified person if the person is an “insolvent under administration”. That expression is defined in s 10(1) as meaning (relevantly) a person who is an undischarged bankrupt under the Bankruptcy Act 1966 (Cth).

42    Section 126J of the SIS Act (which is located in Pt 15) provides:

126J    Court power to revoke or vary a disqualification etc.

(1)    A disqualified person, or the Regulator, may apply to the Federal Court of Australia for:

(a)    if an individual is a disqualified person only because he or she was disqualified under section 126H—a variation or a revocation of the order made under that section; or

(b)    otherwise—an order that the person is not a disqualified person.

(2)    If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 120, the person is not a disqualified person.

(3)    At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a)    if the disqualified person makes the application—by the person with the Regulator; or

(b)    if the Regulator makes the application—by the Regulator with the disqualified person.

(4)    An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court.

43    The principles applicable to an application under s 126J of the SIS Act are similar to those that apply to an application under s 206G of the Corporations Act: see Re Roberts at [23].

44    I note that in Re Wake [2025] FCA 1481, McDonald J discussed an issue as to the power of the Court to make an order under s 126J in circumstances where the relevant Regulator is not the Australian Prudential Regulation Authority (APRA) (given the terms of s 126G of the SIS Act). McDonald J held (at [59]-[61]) that s 126J can, and should, be read so as to permit a disqualified person to apply for the lifting of the disqualification whether or not APRA is the relevant Regulator. This view was followed by Halley J in Re Lu [2026] FCA 841 at [60]-[63]. In light of those judgments, I consider that the Court has power under s 126J of the SIS Act to make the orders sought.

The application

45    By his amended originating process, Mr Fitzgerald seeks orders to the following effect (putting aside costs):

1.    Pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) (Corporations Act), it be declared that this proceeding is not invalid by reason of the applicant’s failure to lodge the notice prescribed by s 206G(2) of the Corporations Act.

2.    Pursuant to s 312(5)(a) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), it be declared that this proceeding is not invalid by reason of the applicant’s failure to lodge the written notice required by s 126J(3)(a) of the SIS Act.

3.    Pursuant to s 206G(1)(c) of the Corporations Act, the applicant have leave to manage Fitzgerald-Cuskelly SMSF Pty Ltd (ACN 604 357 959) (SMSF Trustee), subject to the condition that, until such time as the applicant ceases to be a director of the SMSF Trustee or is no longer disqualified from managing corporations, the SMSF Trustee not engage in any activity other than:

a.    acting as trustee of the Fitzgerald-Cuskelly Superfund (Fund); and

b.    doing things reasonably incidental to so acting.

4.    Pursuant to s 206G(1)(c) of the Corporations Act, the applicant have leave to manage Fitzgerald-Cuskelly (Yeerongpilly) Property Pty Ltd (ACN 653 225 166) (Yeerongpilly Custodian Company), subject to the condition that, until such time as the applicant ceases to be a director of the Yeerongpilly Custodian Company or is no longer disqualified from managing corporations, the Yeerongpilly Custodian Company not engage in any activity other than:

a.    acting as trustee of the Fitzgerald-Cuskelly (Yeerongpilly) Property Trust;

b.    acting as custodian in relation to the Fund under the limited recourse borrowing arrangement concerning the property held through that trust; and

c.    doing things reasonably incidental to so acting.

5.    Pursuant to s 206G(1)(c) of the Corporations Act, the applicant have leave to manage Fitzgerald-Cuskelly (Lyric) Property Pty Ltd (ACN 617 760 219) (Lyric Custodian Company), subject to the condition that, until such time as the applicant ceases to be a director of the Lyric Custodian Company or is no longer disqualified from managing corporations, the Lyric Custodian Company not engage in any activity other than:

a.    acting as trustee of the Fitzgerald-Cuskelly (Lyric) Property Trust;

b.    acting as custodian in relation to the Fund under the limited recourse borrowing arrangement concerning the property held through that trust; and

c.    doing things reasonably incidental to so acting.

6.    Pursuant to s 126J(1)(b) of the SIS Act, the applicant not be a disqualified person for the purposes of the SIS Act, subject to the condition that, until such time as the applicant is discharged from bankruptcy, the applicant must not be, or act as:

a.    the trustee, investment manager or custodian of any superannuation entity; or

b.    the responsible officer of a body corporate that is a trustee, investment manager or custodian of any superannuation entity,

except that subparagraph (b) does not prevent the applicant from acting as a director of:

c.    the SMSF Trustee, while the SMSF Trustee acts solely in the capacities described in paragraph 3 herein; and

d.    the Yeerongpilly Custodian Company, while the Yeerongpilly Custodian Company acts solely in the capacities described in paragraph 4 herein; and

e.    the Lyric Custodian Company, while the Lyric Custodian Company acts solely in the capacities described in paragraph 5 herein.

Consideration

46    Applying the principles set out above to the present circumstances, I am satisfied that it is appropriate to grant leave under s 206G(1)(c) of the Corporations Act and to make an order as sought under s 126J(1)(b) of the SIS Act.

47    First, as submitted by Mr Fitzgerald, the proposed grant of conditional leave is narrow and confined. It operates only to permit Mr Fitzgerald to manage the SMSF Trustee and the Custodian Companies, and only so long as they continue to operate in a limited way. The SMSF Trustee exists solely to administer the Fund. The Custodian Companies exist only to hold legal title under the two limited recourse borrowing arrangements. None conducts an independent trading business. Accordingly, there is no identifiable, material risk to the public from the grant of leave in this case.

48    Second, the persons principally exposed to Mr Fitzgerald’s management support the application. Mr Fitzgerald and Ms Cuskelly are the only members of the Fund and the only shareholders of the SMSF Trustee. Ms Cuskelly supports the relief and will remain involved in the structure. The Fund’s assets are retirement assets held for them. Mr Fitzgerald’s regulated superannuation interest is not property divisible among his creditors: see s 116(2)(d)(iii)(A) of the Bankruptcy Act.

49    Third, Mr Fitzgerald’s conduct since his bankruptcy supports (or at least is not against) the relief sought. Mr Fitzgerald says that he has cooperated with his Trustee and provided requested information. The Trustee has not opposed the application. Although the report of the Trustee dated 16 March 2026 states (on pp 2 and 4) that certain documents and information had not been provided, Ms Archer states in para 11 of her affidavit dated 14 August 2026 that Mr Hai Tran (of PKF Melbourne, being the office of the Trustee) stated to her on that day that “We have no outstanding matters with [Mr Fitzgerald]”.

50    Fourth, although the circumstances leading to the bankruptcy involve The Marlo Group failing to satisfy substantial taxation obligations, which is acknowledged in Mr Fitgerald’s submissions as a matter that may give the Court “pause”, I do not consider this matter to be sufficient to outweigh the other factors which favour the grant of the application. I have had regard also to the reports of the Administrator dated 21 August 2025 and 16 October 2025. I accept the submission (at para 60 of Mr Fitzgerald’s submissions) that there is nothing in the specific commercial circumstances leading to the failure of The Marlo Group, and hence the bankruptcy, that would indicate a risk that Mr Fitzgerald’s participation in management might imperil the Fund or the Custodian Companies. Mr Fitzgerald does not seek leave to manage a trading corporation; and the nature of the specified companies, the continuing involvement of Ms Cuskelly, the external professional support and the proposed activity restrictions materially distinguish the permitted conduct from the commercial circumstances preceding the bankruptcy.

51    Fifth, I accept the submission of Mr Fitzgerald that a refusal of leave would produce significant practical detriment to the Fund, Mr Fitzgerald and Ms Cuskelly.

52    Insofar as relief is sought to cure a procedural irregularity with the commencement of the proceeding, I accept that this occurred through inadvertence and that the purpose of the relevant notice provisions has been substantially achieved. Accordingly, I consider it appropriate to make the procedural orders.

Conclusion

53    I will therefore make orders substantially as sought in the amended originating process.

Associate:

Dated:    20 August 2026