Australian Securities and Investments Commission v Marco [2019] FCA 466

Australian Securities and Investments Commission v Marco [2019] FCA 466

On the evidence now before the Court, including independent valuation evidence, the sums sought to be paid under the builder's invoices are reasonable, the transaction is at market value and arms-length, and payment will enhance asset value for aggrieved persons. There being consent and no credible evidence to the contrary, the freezing orders should be varied as sought by consent to permit specified payments.

Jurisdiction
Australia
Judgment Date
18 March 2019
Procedural Posture
Corporations / Commercial Interlocutory Application / Interlocutory (variation of Freezing Orders by Consent)
Outcome
Consent variation of freezing orders permitted; orders for payment of specified builder's invoices made
Legal Topics
['freezing Orders' 'asset Preservation' 'variation of Orders' 'suppression and Non Publication Orders' 'corporations Act S 1323' 'administration of Justice']
['corporations Law' 'commercial Law' 'civil Procedure'] ['freezing Orders' 'asset Preservation' 'variation of Orders' 'suppression and Non Publication Orders' 'corporations Act S 1323' 'administration of Justice']

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Procedural Posture

Corporations / Commercial Interlocutory Application / Interlocutory (variation of Freezing Orders by Consent)

Legal Issues

  1. 1 ['Whether the freezing orders under s 1323 of the Corporations Act and associated statutes should be varied to permit payment of specific building expenses by the first defendant' 'Whether the evidence supports the appropriateness of the proposed variations, including effect on aggrieved investors and asset preservation' 'Whether suppression and non-publication orders should be maintained given the ongoing ASIC investigation']

Ratio Decidendi

On the evidence now before the Court, including independent valuation evidence, the sums sought to be paid under the builder's invoices are reasonable, the transaction is at market value and arms-length, and payment will enhance asset value for aggrieved persons. There being consent and no credible evidence to the contrary, the freezing orders should be varied as sought by consent to permit specified payments.

Court Disposition

Consent variation of freezing orders permitted; orders for payment of specified builder's invoices made

Orders

  • ['Notwithstanding order 3 of the orders made on 1 November 2018, the First Defendant be permitted to pay the tax invoice rendered by Building Workshop Pty Ltd dated 5 November 2018 number 00000508 for refurbishment of the property at 151 Scarborough Beach Road, Mount Hawthorn, in the sum of $275,000.00 (inclusive of...