Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719 File number: WAD 481 of 2018

Judge: MCKERRACHER J

Date of judgment: 27 May 2020

Catchwords: CORPORATIONS – application for the appointment of interim receivers pursuant to s 1101B(5) of the Corporations Act 2001 (Cth) – ongoing investigation by Australian Securities and Investments Commission into possible contraventions of the Corporations Act 2001 (Cth) – whether there is uniformity between interim and final relief sought – whether appointment is desirable – whether appointment would unfairly prejudice any person – where there is prima facie evidence of a significant shortfall in funds available to repay investors – where asset preservation orders pursuant to s 1323 of the Corporations Act 2001 (Cth) already in place – where criminal proceedings against the defendants are 'on the cards' – where no order sought for receiver costs to be paid out of defendants' property at this stage PRACTICE AND PROCEDURE – application for leave to amend originating process pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) – where amendment seeks to identify final relief following extensive investigations – whether the proposed final relief arises from substantially the same facts as those already pleaded – where amendment would prevent a multiplicity of proceedings PRACTICE AND PROCEDURE – application for leave to intervene pursuant to r 9.12 of the Federal Court Rules 2011 (Cth) – whether intervener's contribution is likely to be of assistance or benefit – application of two part test in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37 – whether intervener is better placed to represent the interests of investors – where intervener is in a special position compared with other investors EVIDENCE – tender of admissions – affidavits filed at various stages – read and not read – Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314 considered and applied