Australian Securities and Investments Commission v Marco (No 18) (Funding Agreement Approval) [2025] FCA 1

Australian Securities and Investments Commission v Marco (No 18) (Funding Agreement Approval) [2025] FCA 1

It is appropriate to grant Court approval for SP Receivers and SP AMS Liquidators to enter into the proposed litigation funding agreement, and to make confidentiality and non-publication orders for certain documents, as this would enable the proper pursuit of litigation for the special purpose without prejudice to the administration of justice; leave should also be given to amend the originating process and substitute parties.

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; Fourth Defendant: Loughton Patterson Pty Ltd as trustee of the Loughton Patterson Unit Trust; Plaintiff (wad 40 of 2024, Ceased to Be Party): Napoli Corporate Pty Ltd; Second Plaintiff (wad 40 of 2024) / SP Receiver and SP AMS Liquidator: Jason Stone; Third Plaintiff (wad 40 of 2024) / SP Receiver and SP AMS Liquidator: Glenn Franklin
Jurisdiction
Australia
Judgment Date
06 January 2025
Procedural Posture
Corporations and Corporate Insolvency / Approval of Funding Agreement and Confidentiality Orders; Leave to Amend Originating Process
Outcome
Approved funding agreement; granted confidentiality orders; leave to amend originating process and substitute plaintiffs; costs orders as specified; Napoli Corporate ceases to be party in WAD 40 of 2024.
Legal Topics
Litigation Funding, Receivers and Managers, Liquidators, Unregistered Managed Investment Scheme, Confidentiality Orders, Practice and Procedure
Corporations Insolvency Commercial Law Litigation Funding Receivers and Managers Liquidators Unregistered Managed Investment Scheme Confidentiality Orders +1 more

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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

Loughton Patterson Pty Ltd as trustee of the Loughton Patterson Unit Trust

Fourth Defendant

Napoli Corporate Pty Ltd

Plaintiff (wad 40 of 2024, Ceased to Be Party)

Jason Stone

Second Plaintiff (wad 40 of 2024) / SP Receiver and SP AMS Liquidator

Glenn Franklin

Third Plaintiff (wad 40 of 2024) / SP Receiver and SP AMS Liquidator

Procedural Posture

Corporations and Corporate Insolvency / Approval of Funding Agreement and Confidentiality Orders; Leave to Amend Originating Process

Legal Issues

  1. 1 Should SP Receivers and SP AMS Liquidators be granted approval to enter into a litigation funding agreement?
  2. 2 Should confidentiality and non-publication orders be made with respect to certain documents in the proceedings?
  3. 3 Is it appropriate to grant leave to amend the originating process and substitute plaintiffs?

Ratio Decidendi

It is appropriate to grant Court approval for SP Receivers and SP AMS Liquidators to enter into the proposed litigation funding agreement, and to make confidentiality and non-publication orders for certain documents, as this would enable the proper pursuit of litigation for the special purpose without prejudice to the administration of justice; leave should also be given to amend the originating process and substitute parties.

Court Disposition

Approved funding agreement; granted confidentiality orders; leave to amend originating process and substitute plaintiffs; costs orders as specified; Napoli Corporate ceases to be party in WAD 40 of 2024.

Orders

  • Approval for SP Receivers and SP AMS Liquidators to enter into litigation funding agreement.
  • Confidentiality and non-publication orders over specified documents in both proceedings.