Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234

Given the reasonable prospect of a winding up order on just and equitable grounds, unresolved questions about MOGS Pty Ltd's trustee status, asset control and financial position, evidence of possible breaches of the Act, non-disclosure, and the lack of adequate alternative measures, the Court's discretion to appoint...

Source-derived case information.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: ActiveSuper Pty Ltd (ACN 125 423 574); Second Defendant: ACN 143 832 053 Pty Ltd (ACN 143 832 053); Third Defendant: Jason Grant Burrows; Fourth Defendant: Justin Luke Gibson; Fifth Defendant: U.S. Realty Investments #1, LLC (L-1666059-6); Sixth Defendant: U.S. Realty Investments #2, LLC (L-1666058-5); Seventh Defendant: U.S. Realty Investments #3, LLC (L-1668734-4); Eighth Defendant: U.S. Realty Investments #4, LLC (L-1668736-6); Ninth Defendant: Syndicated Property Group Ltd (BVI COMPANY NUMBER 1678711); Tenth Defendant: Worldwide Property Opportunities Ltd (BVI COMPANY NUMBER 1678279); Eleventh Defendant: Cayco Management (REGISTRATION NUMBER CR-265977); Twelfth Defendant: MOGS Pty Ltd (ACN 136 499 360); Thirteenth Defendant: Jeffrey George; Fourteenth Defendant: Graeme Sydney Stonehouse; Fifteenth Defendant: Marina Ulrika Lovisa Gore; Sixteenth Defendant: Mark Gordon Adamson; Seventeenth Defendant: Craig Kirrin Gore
Jurisdiction
Australia
Judgment Date
19 March 2013
Procedural Posture
Corporate Insolvency / Interlocutory Application for Provisional Liquidator
Outcome
Provisional liquidators appointed to MOGS Pty Ltd; specified powers granted; reporting requirement; restraint orders issued; costs reserved; interlocutory applications regarding amendments adjourned/dismissed.
Legal Topics
Appointment of Provisional Liquidator, Trustee Companies, Just and Equitable Winding Up
Corporations Law Trusts Law Appointment of Provisional Liquidator Trustee Companies Just and Equitable Winding Up

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Parties

Australian Securities and Investments Commission

Plaintiff

ActiveSuper Pty Ltd (ACN 125 423 574)

First Defendant

ACN 143 832 053 Pty Ltd (ACN 143 832 053)

Second Defendant

Jason Grant Burrows

Third Defendant

Justin Luke Gibson

Fourth Defendant

U.S. Realty Investments #1, LLC (L-1666059-6)

Fifth Defendant

U.S. Realty Investments #2, LLC (L-1666058-5)

Sixth Defendant

U.S. Realty Investments #3, LLC (L-1668734-4)

Seventh Defendant

U.S. Realty Investments #4, LLC (L-1668736-6)

Eighth Defendant

Syndicated Property Group Ltd (BVI COMPANY NUMBER 1678711)

Ninth Defendant

Worldwide Property Opportunities Ltd (BVI COMPANY NUMBER 1678279)

Tenth Defendant

Cayco Management (REGISTRATION NUMBER CR-265977)

Eleventh Defendant

MOGS Pty Ltd (ACN 136 499 360)

Twelfth Defendant

Jeffrey George

Thirteenth Defendant

Graeme Sydney Stonehouse

Fourteenth Defendant

Marina Ulrika Lovisa Gore

Fifteenth Defendant

Mark Gordon Adamson

Sixteenth Defendant

Craig Kirrin Gore

Seventeenth Defendant

Procedural Posture

Corporate Insolvency / Interlocutory Application for Provisional Liquidator

Legal Issues

  1. 1 Is the appointment of a provisional liquidator to MOGS Pty Ltd justified under s 472(2) of the Corporations Act 2001 (Cth)?
  2. 2 Does MOGS Pty Ltd's role as trustee of the MOGS Unit Trust affect the Court's power to appoint a provisional liquidator?
  3. 3 Is there a reasonable prospect that a winding up order will be made on just and equitable grounds under s 461(1)(k)?

Ratio Decidendi

Given the reasonable prospect of a winding up order on just and equitable grounds, unresolved questions about MOGS Pty Ltd's trustee status, asset control and financial position, evidence of possible breaches of the Act, non-disclosure, and the lack of adequate alternative measures, the Court's discretion to appoint provisional liquidators is properly exercised. The status of MOGS as trustee does not preclude appointment under Corporations Act provisions.

Court Disposition

Provisional liquidators appointed to MOGS Pty Ltd; specified powers granted; reporting requirement; restraint orders issued; costs reserved; interlocutory applications regarding amendments adjourned/dismissed.

Orders

  • Michael Gerard McCann and Graham Robert Killer appointed as joint and several provisional liquidators to MOGS Pty Ltd under s 472(2) Corporations Act 2001 (Cth).
  • Provisional liquidators granted extensive powers as specified, including asset control, operation of accounts, appointment of professionals, compromise claims, conduct litigation, payment of expenses, application for further orders, and remuneration.