Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781 File number: WAD 481 of 2018

Judgment of: MCKERRACHER J

Date of judgment: 7 December 2020

Date of publication of reasons: 11 December 2020

Catchwords: CORPORATIONS – managed investment scheme – winding up – whether scheme amounted to managed investment scheme required to be registered under s 601ED(1) of the Corporations Act 2001 (Cth) – where the personal defendant executed declarations of trust with investors and pooled funds in personal bank accounts – where personal defendant used funds to participate in 'private placement programmes' – where personal defendant transferred funds to the corporate defendant to purchase real property and vintage cars – whether the conduct of both defendants constituted the operation of a managed investment scheme – in circumstances where the personal defendant considered the corporate defendant to be an extension of his business dealings CORPORATIONS – financial services business – whether the defendants carried on a financial services business – whether the defendants breached s 911A of the Corporations Act by not holding an Australian Financial Services License – whether the personal defendant was dealing in a financial product – whether the corporate defendants' holding of property assets formed part of the financial services business CORPORATIONS – final relief – winding up orders – contraventions of Ch 5C and Ch 7 of the Corporations Act – whether it is just and equitable that the scheme and the corporate defendant be wound up – whether receivers should be appointed on a final basis concurrently with liquidators – where receivers are necessary for identification and delivery up of scheme property CORPORATIONS – final relief – declarations – whether there is sufficient evidence to support the declarations sought CORPORATIONS – final relief – injunctions – where injunctions would expose the personal defendant to contempt of court for further contraventions – whether exposure to contempt of court for future contraventions is appropriate given the deliberateness and seriousness of the contraventions CORPORATIONS – receivers – administrators – liquidators – where the corporate defendant is placed in voluntary administration by the personal defendant after the filing of the application for winding up – where the creditors of the corporate defendant resolve that it be wound up after the final hearing of the winding up application – where interim receivers were appointed to the whole scheme six months ago – whether the interim receivers should replace the voluntary administrators as liquidators of the corporate defendant – orders under s 467B of the Corporations Act – in circumstances where the appointment of a single insolvency practitioner to the whole scheme will save time and expense in the winding up