Federal Court of Australia

ST Private Investment Fund No 1 Pty Ltd v Agio Global Funds Management Pty Ltd [2026] FCA 1367

ORDERS

In this Order:

Books:    includes a register, any other record of information, financial reports or financial records however compiled or recorded or stored, a document, papers, records, books of account, ledgers, journals, banking records, computer records, emails or other documents of any type whatsoever relating to the Property of the Respondents.

Corporations Act:    means Corporations Act 2001 (Cth)

Federal Court Act     means the Federal Court of Australia Act 1976 (Cth) Trust Accounts: means any bank account in the name of (or controlled by) the Manager, the Trust or the Trustee and includes National Australia Bank account number 599212746, BSB 084-917 and National Australia Bank account number 971599618, BSB 084-917 Investor Money: means monies provided to any of the Respondents, whether directly, or through any of the Respondents’ authorised agents, servants and/or representatives, for the actual or ostensible purpose of providing to investors, or arranging for investors to acquire, an interest in a financial product and/or one or more of the Respondents otherwise using such monies for the purpose of providing a return to investors on the monies invested.

Manager         means Agio Global Pty Ltd ACN 640 636 193

Property:     means all real or personal property, assets or interests in property or assets of any kind, including any choses in action, wherever located.

Related Party     means Richard Brown, Nicholas Barnsdall and/or James Dean, together with any company or entity in respect of which either of them control, own or otherwise have an interest in by owning shares or units in that company or in respect of which they act as a director.

Trust     means the trust constituted as the “Agio Global Investment Trust” and otherwise known interchangeably by the names “Agio Global Investment Fund” and “Agio Global Business Investment Fund”

Trustee     means Agio Global Funds Management Pty Ltd ACN 643 296 968 as trustee of the Trust

THE COURT ORDERS, BY CONSENT, THAT:

1.    Pursuant to sections 23 and 57 of the Federal Court Act for the appointment until further order, of Bill Karageozis and Nikita Keramos as joint and several receivers and managers (Receivers), without security, to the Property of the Trust and of the Respondents, whether within or without the State of Queensland, to:

(a)    identify and secure the Books and Property of the Trust and the Respondents;

(b)    ascertain the assets and liabilities of the Trust and the Respondents;

(c)    ascertain the unitholders of the Trust and the consideration paid for those units;

(d)    ascertain the amount of Investor Money received by the Respondents;

(e)    identify any correspondence or document as to the arrangement or relationship between the company now known as Wicklow Fund Services Pty Ltd ACN 098 472 587 (formerly known Lanterne Fund Services Pty Ltd (Lanterne)) and either of the Respondents or a Related Party, including with respect to dealing in a financial product and providing custodial or depository services;

(f)    identify any correspondence or document as to any arrangement or relationship between either of the Respondents and/or a Related Party with any holder of an Australian Financial Services License (AFSL), including with respect to dealing in a financial product and providing custodial or depository services;

(g)    identify any dealings with, payments or distributions of, or uses made by the Respondents of the Investor Money received by them;

(h)    identify any Property purchased or acquired by the Respondents with Investor Money, including any shares or units in a Related Party or Third Party; and

(i)    identify the extent to which transactions were entered into by the Respondents with any Related Party, including the extent to which Investor Money was used to pay monies to a Related Party by way of any loan to (or investment in) any Related Party or purchase of shares in any Related Party by (or on behalf of) the Trust or either or both of the Respondents;

(j)    identify any payments made by (or behalf of) the Respondents (or either of them) to themselves (or to either of them), or to any Related Party or to any third party since the Trust was first established, including any fees paid for or in respect of the establishment, management or performance of the Trust or any other expenses of any kind paid to either of the Respondents or to any Related Party or to any third party;

(k)    as at the date of the Report identify the status of any attempt by, or on behalf of, the Respondents (or either of them) to recover monies paid to any Related Party or to any third party by way of loan or any other transaction entered into by, or on behalf of, the Respondents (or either of them) using Investor Money or otherwise using the Property of the Trust;

(l)    file and serve on the Applicants a report to the Court within 45 days:

(i)    as to the work undertaken by the Receivers;

(ii)    addressing each of the matters referred to in subparagraphs 1(a) to 1(k) of this order as is available to the Receivers at the date of the Report, annexing all documents obtained by the Receivers in respect of those matters as annexures to the Receivers’ Report;

(iii)    an opinion as to the solvency of the Trust on the information available at the date of the Report;

(iv)    further addressing any other matter of concern on the information available at the date of the Report, including:

A.    identifying possible contraventions, including of the Corporations Act, That might warrant further investigation by an appropriately qualified person or regulatory authority;

B.    the solvency of the Manager, the Trustee or the Trust;

(v)    having regard to the matters addressed in subparagraphs 1(l)(i) to (iv) immediately above, an opinion as to whether the Trust ought to:

A.    continue operating; or

B.    be wound up.

2.    The Receivers:

(a)    are authorised and have the power to:

(i)    take possession of, preserve and maintain the Property of the Trust and Respondents;

(ii)    appoint solicitors, accountants, or other professionally qualified persons to assist the Receivers;

(iii)    appoint an agent to do any business that the Receivers are unable to do, or that it is unreasonable to expect the Receivers to do, in person;

(iv)    execute any document, or do any other act or thing in the name of the Respondents to the extent such act or thing is required to investigate and report on the matters in paragraph 1 above;

(v)    take possession of the Books of the Trust and the Respondents and make copies thereof;

(vi)    investigate and report on the matters in paragraph 1 above and do all things as are necessary or convenient to undertake those investigations and report;

(vii)    access, inspect and obtain bank records of bank accounts controlled or operated by the Respondents, including the Trust Accounts;

(viii)    access, inspect and obtain a copy of the Respondents’ physical, electronic or other storage medium containing the Respondents’ Books, including any servers or hosting service for the Respondents’ email system;

(ix)    apply to the Court for directions or further orders as need be;

(b)    without limiting the powers set out in the preceding subparagraph 2(a), have all the powers provided by sections 420(1), (2)(a), (g), (h), (p), (q), (r) and (t) of the Corporations Act and as if references in those sections to “corporation” were references to the Property of the Trust;

3.    The Respondents, including by themselves, their servants, officers, agents or employees:

(a)    immediately and within 7 days, deliver up to the Receivers all Books, records and things in their possession, custody or control which relate to the Trust and/or Property of the Respondents, including but not limited to:

(i)    the unitholder register of the Trust and any other document, which records the names and addresses of the unitholders of the Trust;

(ii)    all relevant credentials and passwords to access and obtain a copy of the Respondents’ system used for hosting email accounts and storage of emails or other storage medium, including for “agio.global” or for any email account using the suffix “@agio.global” and any other hosting service containing the Respondents’ Books; and

(iii)    all relevant credentials and passwords to access the Respondents’ financial and accounting software, including Xero;

(b)    co-operate and promptly respond to any request for documents, information or other assistance as may be made by the Receivers to undertake their investigations and deliver their report as required by paragraph 1 above.

4.    The payment of all costs and expenses in connection with receivership of the Property of the Trust and Respondents, including the Applicants’ costs of this proceeding, be paid in priority from the Property of the Trust without any further order of the Court.

5.    The Receivers’ reasonable remuneration properly incurred in performing their duties be fixed by the Court under rule 14.24 of the Federal Court Rules 2011 and be paid from the Property of the Trust.

6.    The following persons be joined as applicants to the proceeding:

(a)    as Third Applicant, Lanic Holdings Pty Ltd ACN 135 438 439 as trustee for Lanic Family Trust;

(b)    as Fourth Applicant, Veedon Fleece Pty Ltd ACN 600 029 614 as trustee for Veedon Fleece Super Fund;

(c)    as Fifth Applicant, Braeside Superannuation Fund Pty Ltd ACN 168 810 428 as trustee for Braeside Superannuation Fund;

(d)    as Sixth Applicant, Can’t Buy Time Pty Ltd ACN 642 084 811;

(e)    as Seventh Applicant, Tourism Hospitality Services (Aust) Pty Ltd ACN 602 813 883;

(f)    as Eighth Applicant, Nautilus Way Pty Ltd ACN 635 914 902;

(g)    as Ninth Applicant, Lorgren Pty Ltd ACN 081 289 625;

(h)    as Tenth Applicant, Spendthrift Super Pty Ltd ACN 163 370 367 as trustee for Spendthrift Super Fund;

(i)    as Eleventh Applicant, G & I Ingram Super Pty Ltd ACN 631 330 320 as trustee for G & I Ingram Superannuation Fund;

(j)    as Twelfth Applicant, JG Prior SMSF Pty Ltd ACN 169 914 167 as trustee for The J.G. Prior Superannuation Fund;

(k)    as Thirteenth Applicant, John Graeme Prior and Kathryn Prior;

(l)    as Fourteenth Applicant, Mailli Investments Pty Ltd ACN 076 384 471 as trustee for Mailli Family Trust;

(m)    as Fifteenth Applicant, Fivldo Enterprises Pty Ltd ACN 096 703 070 as trustee for Lukothon Family Trust;

(n)    as Sixteenth Applicant, Ranspil Super Pty Ltd ACN 166 573 815 as trustee for Ransley Spillane Superannuation Fund;

(o)    as Seventeenth Applicant, Cookie Jar Super Pty Ltd ACN 166 377 706 as trustee for The Cookie Jar Superannuation Fund;

(p)    as Eighteenth Applicant, SAS Super Pty Ltd ACN 615 039 926 as trustee for SAS Super Fund;

(q)    as Nineteenth Applicant, Vince Mailli Super Pty Ltd ACN 168 062 664 as trustee for Vince Mailli Superannuation Fund;

(r)    as Twentieth Applicant, Demetriades Imaging Pty Ltd ACN 116 967 992 as trustee for The Timothy Demetriades Family Trust;

(s)    as Twenty-First Applicant, RBRT Super Pty Ltd ACN 619 631 588 as trustee for Redland Bay Roof Trusses Pty Ltd Superannuation Pension Fund;

(t)    as Twenty-Second Applicant, BJG QLD Pty Ltd ACN 639 452 010 as trustee for BJG Superannuation Fund.

7.    The Receivers are directed to provide a copy of this order, together with any reasons published in relation to this order, on all of the persons who the Receivers identify are unitholders of the Trust on the material available to them by close of business on Monday, 21 September 2026.

8.    Liberty is granted to any person who has a sufficient interest in the proceeding to apply to the Court on 5 days’ written notice to the parties and to the Receivers.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTORY OVERVIEW

1    The two original Applicants, ST Private Investment Fund No 1 Pty Ltd and Michael Kevin Stewart as Trustee for Greener Grass Family Trust brought an Originating Application for the appointment of receivers and managers to the property of an unregistered management investment scheme most commonly known as “Agio Global Investment Fund” (Agio Fund, defined as the Trust, in the Orders made) and to the property of each Respondent. The Respondents to the Application are Agio Global Funds Management Pty Ltd as Trustee of the Agio Global Investment Trust (Trustee) and Agio Global Pty Ltd (Manager). The Trustee and the Manager are responsible for the Agio Fund.

2    As explained below, there was some urgency to this matter and as such the Originating Application was heard on the first return date, on 11 September 2026.

3    In essence, the Applicants advanced three overarching bases for the appointment of the receivers and managers to the property of the Agio Fund and of the Respondents, being that:

(1)    the Agio Fund had largely failed, because:

(a)    it was either at all times, or at least from April 2025 unlicensed in contravention of the Corporations Act 2001 (Cth) (the Act);

(b)    the investments were by way of related party transactions; and

(c)    it was in financial difficulties and there was potential mismanagement.

(2)    a majority of unitholders in the Agio Fund supported the appointment of the receivers and managers to the property of the Agio Fund; and

(3)    the director of each of the Trustee and the Manager consented to the appointment of receivers and managers to the property of the Agio Fund and of the Respondents.

4    As the hearing of the Originating Application progressed, it became clear that it was appropriate for a further 20 Applicants to be joined to the proceeding. The 22 Applicants represented approximately 58% of the unitholders in the Agio Fund. This supported the second basis for the appointment of the receivers and managers to the property of the Agio Fund.

5    Furthermore, and in support of the third basis for the appointment of the receivers and managers, Mr Richard Brown, director of each of the Trustee and the Manager supported (and consented to the Orders sought for) the appointment of the receiver and manager in the terms proposed by the Applicants. Mr Brown had earlier in writing indicated his consent to the appointment of receivers and managers to the property of the Agio Fund and of the Respondents. Mr Brown was also granted leave to appear at the hearing on 11 September 2026 for the Trustee and the Manager and gave his consent to the Orders as proposed (which differed slightly to those earlier advanced), on behalf of each of the Trustee and the Manager.

6    Orders were made at the hearing on 11 September 2026. These are my reasons why those Orders appointing receivers and managers to the property of the Agio Fund and of the Respondents were made.

7    It is important to keep in mind that these proceedings are at a very early stage and although Orders were made for the appointment of receivers and managers, any findings made or observations made in these reasons are obviously not final.

ESTABLISHMENT OF THE AGIO FUND

8    The Constitution for the Agio Global Investment Trust (Agio Fund) is dated 1 September 2020. Broadly, the Trustee was to hold the assets on trust for the benefit of the unitholders. The beneficial interest in the Trust Fund is divided into and comprises of units, which are in turn held by the unitholders.

9    The Trustee, pursuant to the Constitution, was to engage an Investment Manager according to an Investment Management Agreement. The Investment Manager was identified in the Constitution as the Manager. The Investment Management Agreement appears to be signed on 1 October 2020. The recitals to the Investment Management Agreement record that each of the Trustee and the Manager are appointed as corporate authorised representatives of Lanterne Fund Services Pty Ltd (now, Wicklow Fund Services Pty Ltd).

10    The Agio Fund was promoted by way of at least the 2020 Information Memorandum and the 2021 Information Memorandum. Those Information Memoranda expressly stated that investment in the Agio Fund was only available to persons who qualify as sophisticated investors (s 761GA of the Act) or wholesale clients (s 761G(7) of the Act). Further each Information Memoranda also expressly stated that each of the Trustee and the Manager were appointed as corporate authorised representatives of Lanterne.

11    Three individuals were also identified in the Information Memoranda which have, for the most part, promoted the Agio Fund since its creation. Mr James Dean is described as the Founding Director, Mr Nicholas (Nick) Barnsdall is described as the Chairman and Mr Brown is described as the Managing Director. In terms of their roles and shareholdings of the Trustee and Manager, those are as follows:

12    Global Trading is an entity controlled by Mr Barnsdall, being its sole director, secretary and shareholder.

13    On the material currently before the Court, as at 2 June 2025, it appears that there are 19,781,163 units in the Agio Fund. The unitholdings for each of the 22 Applicants is outlined in the table below. These 22 Applicants have paid approximately $13,675,000 for their respective units in the Agio Fund.

RELEVANT LEGAL PRINCIPLES

14    The Originating Application relies on s 23 and s 57 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Section 23 of the FCA Act provides:

23    Making of orders and issue of writs

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

15    Section 23 gives the Court a very broad power to make any orders which are efficient and just in the administration of justice: Ilumba Pty Ltd v Malouf [2019] FCA 2095 at [15] (Derrington J); Bakers Delight Holdings Ltd v Fair Work Ombudsman (2025) 312 FCR 99; [2025] FCAFC 144 at [120] and [123] (Mortimer CJ, Hatcher and Dowling JJ).

16    Section 57 of the FCA Act provides:

57    Receivers

(1)    The Court may, at any stage of a proceeding on such terms and conditions as the Court thinks fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do.

(2)    A receiver of any property appointed by the Court may, without the previous leave of the Court, be sued in respect of an act or transaction done or entered into by him or her in carrying on the business connected with the property.

(3)    When in any cause pending in the Court a receiver appointed by the Court is in possession of property, the receiver shall manage and deal with the property according to the requirements of the laws of the State or Territory in which the property is situated, in the same manner as that in which the owner or possessor of the property would be bound to do if in possession of the property.

17    Section 57(1) empowers the Court to appoint a receiver on an interlocutory basis on such terms and conditions as the Court thinks fit, in any case in which it appears to the Court to be just or convenient to do so. Generally, the Court appoints a receiver to protect or preserve property for the benefit of persons who have an interest in that property: Hosking, Re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438 at [17] (Gleeson J). However, the circumstances when the power may be exercised and the purposes for which a receiver may be appointed, are not closed: University of Western Australia v Gray (No 6) [2006] FCA 1825 at [71] (French J). The power under s 57 of the FCA Act is expressed in broad terms, it being when it is “just or convenient so to do”. The statutory language of s 57(1) does not require “exceptional circumstances” or place an implicit fetter on the exercise of the power to appoint a receiver: Australian Securities and Investments Commission v Hopkins [2024] FCA 1371 at [104] (Beach J).

18    Section 23 is also an available source of power to appoint a receiver: Hopkins at [102]; QB4 Capital Pty Ltd, in the matter of an application by QB4 Capital Pty Ltd [2026] FCA 62 at [12] (Cheeseman J).

19    Relevantly, in addition to the protection or preservation of property, it may be just or convenient to appoint a receiver when an asset structure requires investigation, where proper management is required or to facilitate a quasi-administration of the affairs of a defendant/respondent who is in financial difficulties: Hopkins at [106]-[109].

CIRCUMSTANCES ARE “JUST OR CONVENIENT” TO APPOINT RECEIVERS

20    There are three overarching bases which the Applicants rely on to support their contention that receivers and managers should be appointed. Separately or cumulatively these bases mean it is just or convenient to appoint receivers and managers.

(1)    The Agio Fund has largely failed

21    The Applicants contend that the Agio Fund has largely failed. For the purposes of this application to appoint receivers, the Applicants expressly do not contend that the Agio Fund was required to be a registered managed investment scheme, in the sense that such a failure would be a breach of the Act. However, this is in part because the evidence that the Applicants have, means that they are not in a position to properly advance a submission that the Agio Fund was required to be registered. This position may change after the receivers and managers have conducted their investigations.

22    However, the Applicants do rely on the following three matters to submit that the Agio Fund has largely failed, and that such failure supports their application for the appointment of receivers and managers.

(a)    The Agio Fund is unlicensed, in contravention of the Act

23    A person who carries on a financial services business in Australia must hold an Australian Financial Services Licence (AFSL), which covers the provision of financial services: s 911A of the Act. Relevantly however, a person is not required to hold an AFSL where the person acts as the “authorised representative” of a holder of an AFSL: s 911A(2)(a) of the Act.

24    A “financial services business” was defined in s 761A of the Act as “a business of providing financial services”, until its repeal on 20 October 2023: Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 (Cth). As it is no longer defined, it must be construed according to its ordinary meaning, which is informed by the definition of “financial services” in s 766A(1)(a), “financial product advice” in s 766B(1), “custodial or depository service” in s 766E and the definition of “dealing” in s 766C of the Act: Australian Securities and Investments Commission v NGS Crypto Pty Ltd (No 5) (2025) 314 FCR 406; [2025] FCA 1611 at [39]-[44] (Collier ACJ); Australian Securities and Investments Commission v BPS Financial (2025) 309 FCR 542; [2025] FCAFC 74 at [62]-[63] (Collier, Markovic and Shariff JJ).

25    The definition of financial product is wide. An interest in an unregistered managed investment scheme is a financial product within the meaning of that term in s 763A and is specifically included in s 764A(1)(ba) of the Act: Australian Securities and Investments Commission v Linchpin Capital Group Ltd [2018] FCA 1104 at [20] (Derrington J).

26    A financial service is provided if the person provides financial product advice or deals in a financial product: s 766A(1)(a) and (b) of the Act. Financial product advice means a recommendation or a statement of opinion that is intended to influence a person in making a decision in relation to a particular financial product or an interest in a financial product or could be regarded objectively as being intended to have such an influence: s 766B(1) of the Act, Australian Securities and Investments Commission v Macro Realty Developments Pty Ltd (2016) 111 ACSR 638; [2016] FCA 292 at [45] (Beach J).

27    At least objectively, it is apparent that the 2020 Information Memorandum and the 2021 Information Memorandum would be regarded as intending to influence a person in making a decision in relation to a particular financial product, being an interest in the Agio Fund, an unregistered managed investment scheme. Each Information Memoranda provides a “disclaimer” that the information provided is not financial product advice. The disclaimer, of itself, may not be sufficient to alter the character of the Information Memoranda as financial product advice: Westpac Securities Administration Ltd v Australian Securities and Investments Commission (2021) 270 CLR 118; [2021] HCA 3 at [8] (Kiefel CJ, Bell, Gageler and Keane JJ). At this stage of the proceeding, bearing in mind the questions to be answered: Australian Securities and Investments Commission v Union Standard International Group Pty Ltd (No 4) [2024] FCA 1481 at [795]-[799], applying the principles distilled at [800]-[808] (Wigney J), it is not possible to finally determine whether the Information Memoranda is financial product advice, however the memoranda appear to be such advice, on a prima facie basis.

28    The meaning of a “financial services business” will now necessarily require consideration of the common law understanding of carrying on a business, in terms of the “elements of system, repetition and continuity” with “some element of commerce or trade”: Australian Securities and Investments Commission v Macrolend Pty Ltd (No 3) (2025) 176 ACSR 29; [2025] FCA 1158 at [38] (S C Derrington J).

29    “Dealing” is broadly defined in s 766C and includes applying for or acquiring, issuing, varying or disposing of a financial product. Relevantly the meaning of “issuing” a financial product is defined in s 761E of the Act.

30    There is evidence before the Court that the Trustee and/or the Manager, being the responsible entities for the Agio Fund carried on a financial services business. In this regard the Trustee and/or the Manager repeatedly (at least in relation to all 22 Applicants) provided financial services by way of either providing financial product advice (in the Information Memoranda), or by way of dealing in a financial product. That dealing being in relation to the units in the Agio Fund.

31    The only evidence before the Court as to either the Trustee or the Manager holding an AFSL, was as a corporate authorised representative of Lanterne.

32    From 19 August 2020 to 1 April 2025 Lanterne purported to appoint the Trustee and the Manager as a corporate authorised representative. However, an issue arises in this respect as to whether that authorisation is sufficient in light of the recent decision in BPS Financial. That issue may be described as whether the Trustee and the Manager required their own AFSL licence, rather than simply being an authorised representative because they were the issuer of the units in the Agio Fund or alternatively, whether the Trustee or the Manager was acting on its own behalf and not as an authorised representative of Lanterne when it provided the financial service: BPS Financial at [5], [9], [100], [106], [113], [115]-[119]. For the purposes of this application to appoint receivers and managers, it is unnecessary to resolve (even on an interim basis) this issue. However, it does require investigation.

33    In any event, since 1 April 2025, neither the Trustee nor the Manager has been a corporate authorised representative of Lanterne. Therefore, any conduct comprising of a financial services business by the Trustee or the Manager since 1 April 2025 would be a contravention of the Act. Such contraventions are serious: Linchpin at [38].

34    Therefore, it is apparent the Agio Fund operated by the Trustee and the Manager is (on the material currently available) potentially being operated contrary to the Act, as it is being conducted without an AFSL or without being an authorised representative under the Act (if that was sufficient).

(b)    Investments by way of related party transactions

35    The investment strategy promoted in each of the Information Memoranda focused upon:

(a)    developing a portfolio of 5 (or 10) to 20 target entities;

(b)    key investments were described as Loan Investments to target entities, Equity Investments by acquiring equity in Target entities and Cash Investments by holding cash in term deposits and at-call cash management accounts;

(c)    a disciplined investment process relying on intensive analysis and industry research;

(d)    a diversified portfolio across a broad range of industry sectors (listing out renewable energy, resources, infrastructure, agribusiness and food, technology and real estate); and

(e)    capital preservation, with each investment at 100% LVR or above with hard assets so in the rare event of risk materialising the capital is recovered.

36    However, from the evidence available to the Court it appears that the majority of the investments of the Agio Fund to date have been made by way of related party loans and transactions.

37    The first such related party loan is dated 10 November 2020, shortly after the Agio Fund was established and was for an amount of over $5.3M. This loan facility was extended both in terms of an additional amount was lent in the sum of $2M, and the time to repay was also extended.

38    Two further related party loans were entered in August 2023 and November 2023 for $2.4M and $1.6M respectively. Further, a $3M loan to the Manager is reported in the August 2025 investor update.

39    The other investments by the Agio Fund were two equity investments. The first equity investment of $5M began by way of debt that was converted into equity. The second appears to be the purchase of shares, for approximately $6.5M. Both of these equity investments are also with related or associated entities.

40    The Information Memoranda each disclosed that conflicts may arise from time-to-time and that the Manager may enter transactions with related entities. Further, it was also stated in the 2020 Information Memorandum that the Manager has the right to change the investments and investment strategy.

41    The related party investment loans have not been made at “arms length” and it is unclear whether such loans were on commercial terms: Linchpin at [47]-[48].

42    There is also evidence of default and demands for repayment of these related party loans. However, of greater concern (and providing at least one of the bases for there being some urgency) is that upon the legal demands being made to the related parties, disputation has resulted and there has been an exchange of legal correspondence. Furthermore, Mr Brown has expressed a concern regarding Mr Barnsdall and Mr Dean and a possible attempt to remove him as the sole director of “Agio”, being the Trustee and the Manager (given they comprise or control the majority shareholders).

(c)    Financial difficulties & potential mismanagement

43    The 2025 profit and loss statement records a negative net profit of $10.46M. That net profit included an amount of $4.95M “investment written down”. The balance sheet for 2025 records only $115.93 as “cash at bank”. The relevant tax returns for the year ending 30 June 2025 have not been lodged with the Commissioner of Taxation. Mr Brown has stated in correspondence that this will occur “once funds are available”.

44    In seeking leave to appear and speak on behalf of the Trustee and the Manager, Mr Brown stated that neither entity could currently afford to retain legal representatives.

45    On the evidence available, it does appear that the Trustee and the Manager are in financial difficulties. However, even if that is not correct, the position at least requires investigation.

46    The Applicants have also raised concerns about the payment of fees of the Trustee and the Manager. Despite the concerning position stated in the 2025 financial statements, “Investment Manager Fees” of $563,651.21 and “Trustee Fees” of $282,076.69 are still recorded as an expense, again noting the significant negative net profit. The profit and loss statement also records a negative expense of approximately $2.95M for an “unrealised performance fee”. It is unclear what is the basis of this fee.

Conclusion – Has the Agio Fund failed?

47    It is unnecessary to finally determine, on this application to appoint receivers and managers, whether or not the Agio Fund has failed. It is sufficient for the purposes of this application to observe that the evidence supports at least an interim finding that the property of the Agio Fund is in need of protection or preservation. This is supported by the disputed recovery of the related party loans and the significant negative net profit for the 2025 financial year.

48    Furthermore, the question is whether it is just or convenient to appoint receivers and managers when those related party transactions require investigation. Those related loans form a substantial part of the underlying asset structure of the Agio Fund. Further, if the Agio Fund is operating contrary to the requirements of the Act, by not holding an AFSL or by not being an authorised representative, as required, such matters are serious and require investigation.

49    Finally, it is apparent that the Agio Fund is in financial difficulties. The Trustee has not lodged its 2025 income return and neither the Trustee nor the Manager could afford legal representation when this application was heard. This is together with the 2025 profit and loss statement recording a net negative profit of more than $10.46M.

50    For all of these reasons, this overarching basis supports the appointment of receivers and managers to the property of the Agio Fund and of the Respondents.

(2)    A majority of unitholders support the appointment

51    ST Private and Greener Grass instituted the Originating Application. ST Private and Greener Grass hold almost 3,000,000 units in the Agio Fund which represents approximately 15% of the unitholdings in the Agio Fund, based on the units issued up to June 2025.

52    The evidence of Mr Kerrigan, the sole director of ST Private was that he was also a financial planner and the managing partner of Snelleman Tom, a consultant accounting and financial planning firm. He stated he was authorised to act in respect of this proceeding on behalf of each of the clients of Snelleman Tom who have invested in the Agio Fund.

53    The evidence of Mr Stewart, the trustee for Greener Grass, was that he was also a financial advisor. Mr Stewart founded Lead Partners Private Wealth which practices in the areas of self-managed super funds, tax, retirement planning and risk management. He stated he was authorised to act in respect of this proceeding on behalf of each of the clients of Lead Partners who have invested in the Agio Fund.

54    To support this ground for the appointment of the receivers and managers, that the majority of unitholders sought and supported the appointment, it was appropriate for all of the clients of Snelleman Tom and Lead Partners who have invested in the Agio Fund to also be joined as Applicants to these proceedings. The Applicants and each of their respective unitholding is set-out above at [13]. The total unitholding of the 22 Applicants is 11,422,493 units, which represents approximately 58% of the total units in the Agio Fund of 19,781,163 units, as at June 2025.

55    The Applicants quite properly brought to the Court’s attention that not all unitholders had been served with the Originating Application or the affidavit material relied on in support of the application. To provide any other unitholder an opportunity to be heard, liberty to apply was provided in the final Orders. In addition, the Receivers are required to serve a copy of the Orders made, and these reasons, on all known unitholders. The Order granting liberty to apply is such that any person who has a sufficient interest in the proceeding can apply to the Court on 5 days’ written notice to the parties to the proceeding and to the Receivers. On any such notice being given, the Court will hear from that person or persons.

56    In all of these circumstances, this basis, now with the joinder of the additional 20 Applicants supports the appointment of the receivers and managers to the property of the Agio Fund. A majority of the unitholders of the Agio Fund support and are now Applicants to this proceeding for the appointment of the receivers.

(3)    The director consents to the appointment

57    Finally, it is relevant and supports the appointment of the receivers and managers to the property of the Agio Fund and of the Respondents that the sole director supports and consents to the appointment.

58    Mr Brown has been a director of the Trustee since it was incorporated on 7 August 2020. Mr Brown has also been a director of the Manager since 1 July 2020, shortly after it was incorporated on 1 May 2020. It has been Mr Brown on behalf of the Agio Fund who has had the Trustee and the Manager undertake steps to seek the recovery of the related party loans.

59    On 4 September 2026, solicitors for the Applicants (after provision of the Originating Application and material relied on to support the application for the appointment of receivers and managers) provided a copy of the draft orders sought for that appointment to Mr Brown. Mr Brown (as director of each of the Trustee and Manager) returned an executed version of the draft orders indicating his consent to the orders sought for the appointment of receivers and managers.

60    In addition, Mr Brown appeared at the hearing and sought leave to represent each of the Trustee and the Manager. In the circumstances leave was granted. The draft orders were amended somewhat and Mr Brown also indicated his consent, as director, to the Orders as made.

61    This also supports the appointment of receivers and managers to the property of the Agio Fund and of the Respondents.

CONCLUSION

62    For all of the above reasons, it is just or convenient to appoint receivers and managers to the property of the Agio Fund and of the Respondents. There is evidence which supports, at this stage, a finding that the property is in need of protection or preservation. Further the underlying asset structure and the way the Agio Fund has been operated, at least from 1 April 2025 is in need of investigation. As such, it was appropriate to make the Orders for the appointment of receivers and managers to the property of the Agio Fund and of the Respondents.

Associate:    

Dated:    16 September 2026