Federal Court of Australia

Bekier, in the matter of an application by Bekier [2026] FCA 1499

ORDERS

THE COURT DECLARES THAT:

1.    Pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth), this application is not invalid by reason of non-compliance with s 206G(2).

THE COURT ORDERS THAT:

2.    Notwithstanding Order 3 of the orders made by Lee J on 18 June 2026 in Federal Court of Australia proceeding NSD 1082 of 2022, and pursuant to s 206G(1), Matthias Michael Bekier has leave to manage the affairs of Leliwa Holdings Pty Limited (ACN 095 066 372), subject to the conditions that:

(a)    the company continues to act only as trustee of a self-managed superannuation fund associated with Mr Bekier; and

(b)    the eligible beneficiaries of that fund are limited to Mr Bekier and members of his immediate family.

3.    There is 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

CHEESEMAN J:

INTRODUCTION

1    In Salomon v A Salomon & Co Ltd [1897] AC 22, the House of Lords established that a company duly incorporated in accordance with statute is a legal person distinct from its members, notwithstanding that its ownership and management may be concentrated within one family.

2    More than a century later, a family company remains a company. Its modest dimensions and domestic purpose do not place it beyond a statutory prohibition against its management. They may, however, assume significance when the Court is asked under s 206G of the Corporations Act 2001 (Cth) to permit a particular and carefully conditioned exception to that prohibition.

3    The plaintiff, Matthias Michael Bekier, makes such an application. He seeks leave under s 206G(1) of the Corporations Act 2001 (Cth) to manage the affairs of Leliwa Holdings Pty Limited. Leliwa has four shares and two directors, Mr Bekier and his wife, Melinda Louise Bekier. The sole function of Leliwa is to act as trustee of a self-managed superannuation fund associated with Mr Bekier. The leave sought is subject to a condition confining Leliwa to that function and limiting the eligible beneficiaries of the fund to Mr Bekier and members of his immediate family.

4    Mr Bekier also seeks a declaration under s 1322(4)(a) that the application is not invalid by reason of non-compliance with s 206G(2).

5    In Australian Securities and Investments Commission v Bekier (Liability Judgment) [2026] FCA 196, Lee J found that Mr Bekier had contravened s 180(1) by failing to discharge his duties as Managing Director and Chief Executive Officer of The Star Entertainment Group Ltd. In Australian Securities and Investments Commission v Bekier (Penalty Judgment) [2026] FCA 756, Lee J determined that the conduct should be characterised as three contraventions: at [146]. On 18 June 2026, his Honour ordered that Mr Bekier be disqualified from managing corporations for six years under ss 206C(1) and 206E(1).

6    Mr Bekier draws attention to the fact that the liability findings and the disqualification order are the subject of an appeal which has not yet been heard.

7    On 23 September 2026, I ordered Mr Bekier to file and serve on the Australian Securities and Investments Commission (ASIC) evidence from Ms Bekier and any adult beneficiaries, ASIC to notify Mr Bekier of its position, and Mr Bekier to provide short written submissions. I also ordered that the application be determined on the papers.

8    Mr Bekier relies on his affidavit, sworn 16 September 2026, the affidavit of Richard Glenn Harris, Partner at Gilbert + Tobin, affirmed 16 September 2026, and the affidavit of Ms Bekier, Melinda Louise Bekier, affirmed 29 September 2026, together with the annexures to those affidavits.

9    ASIC consents to the relief sought.

CONSIDERATION

Applicable principles

10    Section 206G(1) permits a person who is disqualified from managing corporations, otherwise than by ASIC, to apply for leave to manage a corporation. The Court may grant leave subject to exceptions or conditions: s 206G(3).

11    The plaintiff bears the onus of establishing that an exception should be made to the legislative policy underlying the prohibition. That prohibition is protective, not punitive, and the discretion must be exercised with that purpose in the forefront: Adams v Australian Securities & Investments Commission [2003] FCA 557; 46 ACSR 68 at [8] (Lindgren J); Frigger, in the matter of an application by Frigger [2019] FCA 1730; 139 ACSR 329 at [8] (Jackson J).

12    Relevant considerations include the nature and circumstances of the disqualification; the plaintiff’s character and conduct, including since the disqualification; the likelihood of repetition; the management role proposed; and the degree of control and supervision that would attend that role: Adams at [8]; Duffy, in the matter of Westgate Ports Ltd (ACN 096 501 727) [2010] FCA 608; 79 ACSR 267 at [19] (Gordon J).

13    Where leave is sought in relation to a specified corporation, the Court will consider its structure and business, the interests of its shareholders, creditors and employees, and any risk to those persons or to the public. The interests of third parties and the public are central to the exercise of the discretion: Adams at [8]; Frigger at [10]; Macalister, in the matter of an application by Macalister [2021] FCA 1455 at [21] (Banks-Smith J).

14    The plaintiff must satisfy the Court by evidence in proper form, notwithstanding the absence of opposition by ASIC or any other contradictor: Frigger at [9]; Macalister at [14]. If leave is granted subject to conditions, those conditions should address the risks presented by the application and be workable, intelligible and capable of operating as free-standing obligations: Duffy at [39].

Leliwa’s structure and business

15    Leliwa is a registered Australian proprietary company and is recorded as a superannuation trustee proprietary company. Mr Bekier and Ms Bekier each hold two of its four ordinary shares.

16    Leliwa is the corporate trustee of a self-managed superannuation fund associated with Mr Bekier. Mr Bekier is principally responsible for Leliwa’s investment decisions. His evidence is that Leliwa has no dealings with third parties except in connection with investments, including dealings with financial advisers and share brokers. Leliwa has no debt and funds investments from its own financial resources.

17    Mr Bekier is presently abstaining from all involvement in Leliwa. Ms Bekier is aware of the disqualification order and supports the relief sought and Mr Bekier’s continued management of Leliwa.

Whether leave should be granted

18    ASIC was provided with draft application materials before the proceeding was commenced. It requested that the supporting evidence address the views of Leliwa’s other director and the beneficiaries of the fund and that the proposed condition be amended to confine the eligible beneficiaries to Mr Bekier and members of his immediate family. After those matters were addressed, ASIC confirmed that it had no further comments and consented to the relief sought. Following the filing of Ms Bekier’s affidavit and confirmation that there were no other adult beneficiaries, ASIC maintained its consent.

19    ASIC’s informed consent is relevant but not determinative. The Court must itself be satisfied that leave is consistent with the protective purpose of s 206G: Frigger at [9]; Macalister at [14].

20    The conduct giving rise to the disqualification order was serious. It comprised sustained failures by Mr Bekier to respond appropriately to information bearing on legal, regulatory and reputational risks concerning The Star Entertainment Group’s dealings with junkets and its principal banker. The contraventions occurred over a significant period and involved more than an isolated lapse of judgment: Penalty Judgment at [163]-[179]. Lee J also found that the evidence did not demonstrate developed insight into why the conduct represented serious failures in the discharge of Mr Bekier’s duties: Penalty Judgment at [185]. Those findings weigh against the grant of leave. Importantly, however, ASIC did not allege, and the Court did not find, that Mr Bekier’s contraventions involved personal dishonesty: Penalty Judgment at [195].

21    The proposed management role for which leave is sought is materially different from the senior executive role in which the contraventions occurred. It is confined to a company whose only function is to act as trustee of the family self-managed superannuation fund.

22    The proposed condition confines both Leliwa’s permitted activity and the class of persons eligible to benefit from the fund. Although Leliwa necessarily deals with persons such as financial advisers and share brokers in connection with its investments, the evidence otherwise discloses limited exposure of third parties or the public to Mr Bekier’s management of the company.

23    The seriousness of the conduct giving rise to the disqualification order and the findings concerning Mr Bekier’s insight weigh materially against the grant of leave. In the particular circumstances of this application, however, the confined nature of Leliwa’s activities and the conditions imposed substantially limit the risks arising from Mr Bekier’s management of it. Having regard to Leliwa’s structure, the absence of employees and debt, the support of its only other director and adult beneficiary, and ASIC’s informed consent, I am satisfied that the protective purpose of s 206G will not be undermined by the grant of leave.

Declaration sought

24    Mr Bekier did not comply with s 206G(2) by lodging notice of the proposed application with ASIC in the prescribed form at least 21 days before commencing the proceeding. Notwithstanding that, ASIC was provided with the proposed originating process and supporting affidavits before commencement, sought changes to the proposed relief and the evidence, and thereafter consented to the relief sought, including the declaration under s 1322(4)(a). ASIC therefore received actual notice and a proper opportunity to consider the application before the proceeding was commenced. There is no appreciable prejudice or risk arising from the non-compliance, and no purpose would be served by requiring Mr Bekier to recommence the proceeding after lodging notice in the prescribed form: Australian Securities and Investments Commission v Blumenthal [2024] FCA 384 at [62]-[63] (Stewart J).

25    I am therefore satisfied that it is just and equitable to declare under s 1322(4)(a) that the application is not invalid by reason of the non-compliance with s 206G(2).

CONCLUSION

26    For those reasons, I will grant the relief sought by Mr Bekier on this application. There will be no order as to costs.

Associate:

Dated:    9 October 2026