A Federal Court judge has described a related dispute in the corporate regulator’s legal row with Chris Marco as "tortuous" and "somewhat incoherent".
A Federal Court judge has described a related dispute in the corporate regulator’s legal row with Chris Marco as "tortuous" and "somewhat incoherent".
The Australian Securities and Investments Commission started legal proceedings against Mr Marco, a Mount Hawthorn businessman, in the Federal Court of Australia in 2018.
The legal dispute has continued in court, with Federal Court judge Michael Feutrill today delivering another judgment over the matter.
“The path to these orders has been tortuous. An explanation of the background is necessary to understand the orders to be made and the reasons for them,” Justice Feutrill said in his judgment.
"There have been 17 judgments concerning that proceeding; this is number 18."
ASIC alleged Mr Marco owed about $240 million to 132 investors from his unregistered investment scheme which was allegedly operating for 16 years.
The Federal Court ordered the investments scheme reportedly ran by Mr Marco and his company AMS Holdings to be liquidated in 2020.
In 2023, Federal Court judge Michael Feutrill found it appropriate for the liquidators to repay the affected parties from a single mixed fund comprising Mr Marco's cash at bank, property, investments and motor vehicles and assets held by his company.
In early 2024, Napoli Corporate Pty Ltd, Jason Stone and Glenn Franklin filed an interlocutory process, seeking an additional set of liquidators to be appointed as special purposes receivers and managers of Mr Marco’s scheme.
What followed was a string of informal applications and documents filed to the court by Napoli Corporate's solicitors, according to Justice Feutrill's judgment.
Justice Feutrill found the parties took no clear or coherent steps to finalise the special purpose appointment or the associated funding agreement.
“Having regard to the multiple iterations of the proposed funding agreement, premature commencement of the proceedings, repeated amendments to the originating process and the somewhat incoherent and confused manner in which the proceedings have been conducted, I am very reluctant to place the burden of the costs of [the] proceeding … before 2 September 2024 on the special purpose property and, in substance, the members of scheme if a successful claim is made,” his judgment reads.
“Although I have granted leave for the originating process to be amended, the form of the orders sought in the substituted originating process reflects a continuing confusion on the part of the plaintiffs about the nature of their functions and roles as special purpose receivers of property of the scheme, on the one hand, and their functions and roles as special purpose liquidators of AMS Holdings, on the other hand.”
Justice Feutrill ordered the costs incurred from the legal proceedings, from when the special purpose receivers were appointed on September 2 until the hearing heard on December 12, to be paid out of Mr Marco’s special purpose property.
