Australian Securities and Investments Commission v Marco (No 16) (Special Purpose Appointment) [2024] FCA 1000

Australian Securities and Investments Commission v Marco (No 16) (Special Purpose Appointment) [2024] FCA 1000

Orders should be made appointing Jason Stone and Glenn Franklin as special purpose receivers and special purpose liquidators with powers limited to investigation and pursuit of specified claims against Westpac and joint wrongdoers, and remuneration limited to recoveries from those claims, given the demonstrated need...

Source-derived case information.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Chris Marco; Second Defendant: AMS Holdings (WA) Pty Ltd (ACN 164 700 485); Third Defendant: AMS Holdings (WA) Pty Ltd (ACN 164 700 485) as trustee for AMS Holdings Trust; Applicant: Napoli Corporate Pty Ltd; Appointee (special Purpose Receiver / Liquidator): Jason Stone; Appointee (special Purpose Receiver / Liquidator): Glenn Franklin; Interested Party: CHC Investment Fund III Pty Ltd; Receiver and Liquidator: Robert Michael Kirman; Receiver and Liquidator: Robert Conry Brauer
Jurisdiction
Australia
Judgment Date
02 September 2024
Procedural Posture
Corporations / Corporate Insolvency / Interlocutory and Originating Applications – Appointment/approval of Special Purpose Receivers and Liquidators, Suppression Orders
Outcome
Orders made appointing special purpose receivers and liquidators with specified powers and indemnities, subject to undertakings; litigation funding agreement approval declined at present; suppression and non-publication orders made; costs paid out of special purpose property.
Legal Topics
Appointment of Special Purpose Receiver or Liquidator, Litigation Funding Approval, Suppression/non Publication Orders
Corporations Insolvency Practice and Procedure Appointment of Special Purpose Receiver or Liquidator Litigation Funding Approval Suppression/non Publication Orders

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Parties

Australian Securities and Investments Commission

Plaintiff

Chris Marco

First Defendant

AMS Holdings (WA) Pty Ltd (ACN 164 700 485)

Second Defendant

AMS Holdings (WA) Pty Ltd (ACN 164 700 485) as trustee for AMS Holdings Trust

Third Defendant

Napoli Corporate Pty Ltd

Applicant

Jason Stone

Appointee (special Purpose Receiver / Liquidator)

Glenn Franklin

Appointee (special Purpose Receiver / Liquidator)

CHC Investment Fund III Pty Ltd

Interested Party

Robert Michael Kirman

Receiver and Liquidator

Robert Conry Brauer

Receiver and Liquidator

Procedural Posture

Corporations / Corporate Insolvency / Interlocutory and Originating Applications – Appointment/approval of Special Purpose Receivers and Liquidators, Suppression Orders

Legal Issues

  1. 1 Whether to appoint special purpose receivers and liquidators for the purpose of investigating and pursuing claims on behalf of scheme members against third parties (Westpac etc)
  2. 2 Whether to approve a litigation funding agreement prior to appointment of such receivers and liquidators
  3. 3 Whether to make suppression and non-publication orders over affidavits, submissions and exhibits containing confidential or privileged information

Ratio Decidendi

Orders should be made appointing Jason Stone and Glenn Franklin as special purpose receivers and special purpose liquidators with powers limited to investigation and pursuit of specified claims against Westpac and joint wrongdoers, and remuneration limited to recoveries from those claims, given the demonstrated need and absence of practical prospect of recovery without external funding. Approval of the litigation funding agreement is withheld at present due to procedural irregularity and lack of clarity, but suppression and non-publication orders are appropriate to protect confidential and privileged information pending further order.

Court Disposition

Orders made appointing special purpose receivers and liquidators with specified powers and indemnities, subject to undertakings; litigation funding agreement approval declined at present; suppression and non-publication orders made; costs paid out of special purpose property.

Orders

  • Napoli Corporate has leave to amend its interlocutory process.
  • Jason Stone and Glenn Franklin appointed as special purpose receivers and managers of Scheme Property for the purpose of investigating and pursuing claims against Westpac and others.