Australian Securities & Investments Commission v Mercorella (No 2) [2006] FCA 763

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Mercorella (No 2) [2006] FCA 763 Corporations Act 2001 (Cth), s 601EE(2)

Re Stacks Managed Investments Ltd (2005) 54 ACSR 466 Australian Securities and Investments Commission v ABC Fund Managers Ltd (No 3) [2001] VSC 397 Mier v FN Management Pty Ltd (2005) 56 ACSR 93 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v GUISEPPE ANTONIO MERCORELLA & SEABAY INVESTMENTS PTY LTD SAD 160 of 2005 MANSFIELD J 21 JUNE 2006 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 160 OF 2005

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

PLAINTIFF

AND: GUISEPPE ANTONIO MERCORELLA

FIRST DEFENDANT

SEABAY INVESTMENTS PTY LTD ACN 097 021 773

SECOND DEFENDANT

JUDGE: MANSFIELD J

DATE: 21 JUNE 2006

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 20 April 2006, I varied an order of 8 November 2005 under Part 5.9 of the Corporations Act 2001 (Cth) (the Act) for the examination of Domenico Zappia and for him to produce documents. The variation order extended the scope of the proposed examination and the range of the documents he was required to produce. These are my reasons for the variation order. 2 The original order and the variation order were made on the application of Mr Nicol in the following context.

background 3 At material times, Mr Mercorella operated an unregistered managed investment scheme (the Scheme) in contravention of s 601ED(5) of the Act. It was wound up by order of Lander J made on 8 August 2005 on the application of the Australian Securities and Investments Commission (ASIC) pursuant to s 601EE of the Act. By the same order, Mr Nicol was appointed receiver and manager of all the property of Mr Mercorella (with one exception) and all property of the Scheme, and as liquidator of the Scheme. 4 His Honour further ordered that: 'Pursuant to s 601EE(2) of the Corporations Act, the winding up of the Scheme shall be conducted as if the Scheme were for the purposes of the Corporations Act a "company" and in acting as liquidator and administering the affairs of the Scheme the liquidator shall have all the powers and responsibilities that a liquidator would have pursuant to the Corporations Act as if the Scheme were a company, with such modifications as are necessary.'