Australian Securities and Investments Commission v AGKM Green Pty Ltd

The case involved the Australian Securities and Investments Commission (ASIC) seeking the winding up of several companies under Section 461(1)(k) of the Corporations Act 2001 (Cth) on the ground that it was just and equitable to do so. The defendants were under the control of Ms Macpherson and were alleged to be part of a group of companies that had raised over $100 million from private investors through what appeared to be a Ponzi scheme. The court was tasked with determining whether the companies should be wound up to protect the public interest and ensure investor protection.

The legal issues included whether the defendants were being properly managed, the necessity to safeguard investor interests due to the alleged Ponzi scheme and contraventions of the Corporations Act, and whether the reluctance to wind up a solvent company applied in this case. The evidence suggested that the defendants were either insolvent or had failed to maintain proper financial records, making it impossible to assess their solvency status accurately.

The court concluded that there was a lack of confidence in the defendants' proper conduct and management, and that winding up the companies was necessary to protect the public interest. The court found that all factors pointed toward making a winding up order, as the defendants' involvement in the alleged Ponzi scheme and contraventions of the Corporations Act created a significant risk to the public. The court agreed with ASIC that it was just and equitable to wind up the companies, except for the fourteenth defendant whose proceeding was to be discontinued.

The court ordered that the proceeding against the fourteenth defendant be discontinued, and that the other defendants be wound up. Hayden Leigh White and Matthew David Woods of KPMG were appointed as joint and several liquidators of the winding up companies. The plaintiff's costs were to be reimbursed from the property of the winding up companies.