ASIC has successfully applied to the Federal Court of Australia for orders to appoint interim receivers over the assets of Mr Chris Marco, AMS Holdings (WA) Pty Ltd (AMS), and AMS as trustee for the AMS Holdings Trust.
Messrs Robert Kirman and Robert Brauer of McGrathNicol, Perth, have been appointed to act as interim receivers (the interim receivers).
The matter was heard on 16 March 2020 and today Justice McKerracher handed down his decision.
In his judgment, Justice McKerracher said, “That there is a strong need for this independent assessment is apparent from the highly uncertain nature of the investment activities undertaken by Mr Marco and what appears to be a repeated failure over a lengthy period of time to generate material returns for most investors”.
“There is also a serious concern, based on ASIC’s evidence, that the pooling of investor funds without adequate record keeping has meant that payment of some ‘returns’ to investors have come from contributions made by subsequent investors such that there now appears to be a shortfall in excess of $200 million between assets held by the defendants and amounts stated to be owed to investors”.
Justice McKerracher said that the orders sought would allow interim receivers to identify and value property available for distribution to investors, and to preserve property in the event that such distribution is ordered.
The appointment of interim receivers is part of ASIC’s ongoing application for final orders to wind up an alleged unregistered managed investment scheme operated by Mr Marco, with a date for the hearing of the winding up application yet to be set.
The interim receivers are first required to report back to the Court concerning the affairs of Mr Marco and AMS by 26 July 2020.
The judgment can be found here.
ASIC’s investigation into the conduct of Mr Marco is ongoing.
Background
On 1 November 2018, ASIC obtained asset preservation orders over the assets held by Mr Marco and AMS. Since the orders were made, Mr Marco has made numerous applications to vary the asset preservation orders permitting Mr Marco to pay expenses incurred by AMS.
On 12 December 2019, ASIC filed an application seeking leave (which leave was granted by the Court today) to apply for further orders in the Federal Court in Western Australia to wind up an alleged unregistered managed investment scheme, and a related company, operated by Mr Marco. ASIC is also seeking declarations that Mr Marco failed to hold an Australian Financial Services Licence (AFSL) whilst carrying on a financial services business. (19-351MR).
Editor's note:
On 24 July 2020, the interim receivers filed their report with the Court. On 7 August 2020, the Court made orders requiring the interim receivers to provide a redacted version of their report to investors. ASIC understands the redacted report has been provided to investors.
The Federal Court of Australia has listed ASIC’s application for final orders to wind up an alleged unregistered managed investment scheme operated by Mr Marco for a hearing on 28 and 29 October 2020, commencing at 10:15am (AWST) on both days.