Federal Court of Australia

Gray (liquidator) v Marshall Investments GCP Pty Ltd, in the matter of Mawson Infrastructure Group Inc (in liq) (No 3) [2026] FCA 1212

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) and Gray (liquidator) v Marshall Investments GCP Pty Ltd, in the matter of Mawson Infrastructure Group Inc (in liq) (No 2) [2026] FCA 1066 (Mawson No 2). Defined terms in Mawson No 1 will be used in these reasons.

2    This proceeding was commenced by the liquidator who sought orders including an order that the winding up of Mawson be terminated pursuant to s 482(1) of the Corporations Act 2001 (Cth). In Mawson No 1, an order was made on 30 June 2026 adjourning the application to a date to be fixed, with liberty to apply.

3    On 22 July 2026, Mawson filed an application for extension of time and leave to appeal (commencing proceedings NSD 1347/2026) (the leave application). The draft Notice of Appeal annexed to the supporting affidavit challenges the exercise of discretion to not terminate the winding up of Mawson on 30 June 2026.

4    On 3 August 2026, I dismissed an application by Mawson to be joined as a party to the proceedings. Originally, it sought joinder as a plaintiff, but then it later sought to be joined as a defendant. The reasons for that dismissal are contained in Mawson No 2.

5    The filing of the leave application, and the joinder application, were both brought by Mawson through its directors.

6    As Mawson is under external administration (that is, it is in liquidation), s 198G(1) of the Corporations Act prevents the directors from performing or exercising a power of that office: see Mawson No 2 at [11]–[23]. This includes causing Mawson to commence a proceeding. Section 198G(3) contains exceptions including, relevantly, if the officer of the company is acting with the written approval of (in this case) the liquidator or the Court, although noting the effect of s 198G(5).

7    The directors have not obtained the written consent of the liquidator to file the leave application, and nor have they obtained the consent of the Court to do so.

8    Because of these matters, at a case management hearing on 7 August 2026, I ordered that Mawson (by its directors) provide submissions as to why I would not direct the Registrar to reject the filing of the application for extension of time and leave to appeal.

9    Those submissions were provided to my chambers on 21 August 2026.

10    In essence and with respect, the submissions do not address the fundamental issue. Whatever the adverse effect on Mawson might have been as a result of the adjournment of the termination application, this does not overcome the prohibition imposed by s 198G of the Corporations Act.

11    By the plain words of that section, what the directors needed to do before filing the leave application was either obtain the liquidator’s consent or the Court’s consent to cause Mawson to file that leave application. Had consent been sought from the Court, then issues might have come into play such as whether the directors should be required to provide security for the costs to be incurred by Mawson in any appeal, including to protect against Mawson’s potential exposure to adverse costs orders having regard to the uncertainty surrounding Mawson’s solvency, which uncertainty is heightened by the director’s continued failure to comply with Order 4 of the Orders dated 30 June 2026.

12    However, on balance and as Mawson submits, the issue of whether s 198G(1) of the Corporations Act operates to prevent the directors from causing Mawson to file the leave application, and progressing the appeal, in circumstances where s 198G(3) has not been complied with, is something for the Court hearing the leave application to determine. For these reasons, I will not make the proposed direction.

Associate:

Dated:    24 August 2026