Australian Securities and Investments Commission v Marco (No 5)

The Australian Securities and Investments Commission (ASIC) filed an application against Marco and two other defendants, seeking leave to continue proceedings under section 440D(1)(b) of the Corporations Act 2001 (Cth). The dispute arose from proceedings at an advanced stage, where administrators had been appointed to a company by one of the defendants. The application was not opposed by the defendants. The case was heard in the Federal Court of Australia.

The court was tasked with determining whether to grant leave for the plaintiff to maintain the proceedings against the second and, if necessary, the third defendant. The relevant factors considered by the court included the stage of the proceedings, the absence of opposition, and the potential impact of the proceedings on the company and its stakeholders. The court needed to weigh these factors to decide whether it was in the interests of justice to allow the proceedings to continue.

The court found that granting leave was in the interests of justice. The proceedings were at an advanced stage, and there was no opposition from the defendants. The appointment of administrators to the company by one of the defendants indicated a significant level of involvement and potential liability. The court concluded that allowing the proceedings to continue would be in the best interest of the company and its stakeholders. The court granted leave for the plaintiff to maintain the proceedings, reserving costs for later determination.

The court's final orders were to grant leave to the plaintiff to maintain the proceedings against the second defendant and, if necessary, the third defendant, and to reserve costs. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.