Australian Securities and Investments Commission v Marco (No 3)

The case of Australian Securities and Investments Commission v Marco (No 3) involved an application by the Australian Securities and Investments Commission (ASIC) for the appointment of interim receivers and leave to amend the originating process. The application was against Mr Marco, as well as two companies associated with him, in the context of an ongoing investigation into possible contraventions of the Corporations Act 2001 (Cth). The court was required to decide whether the appointment of interim receivers was desirable, whether it would unfairly prejudice any person, and whether there was a uniformity between the interim and final relief sought. Additionally, the court considered an application for leave to intervene by a proposed intervener and a tender of admissions.

The court found that an independent receiver appointed on an interim basis would be better placed than Mr Marco to undertake commercial decision-making with respect to payments, having regard to the interests and benefit of all investors. The court held that ASIC's amended minute should largely be followed, but that costs of the application would be determined separately. The court rejected the application for leave to intervene by the proposed intervener, finding that their contribution was unlikely to be of assistance or benefit. Finally, the court considered the tender of admissions, finding that certain affidavits would be read and others would not be read, in accordance with the decision in Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd.

The court granted ASIC leave to amend the originating process and to appoint interim receivers, with specific powers and restrictions outlined in the orders. The court also ordered that ASIC provide certain documents and information to the receivers, and restrained the first defendant from taking any step to replace the third defendant as trustee for a specific trust. Finally, the court ordered that the parties file and serve submissions on the question of the costs of ASIC's application and on the defendants' interlocutory application filed after this interlocutory application was heard.