//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 897
Supreme Court of NSW
2026-07-27
Nixon J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Capital Guard AU Pty Ltd (ACN 168 216 742) [2026] NSWSC 897
Hearing dates: 27 July 2026
Date of orders: 27 July 2026
Decision date: 27 July 2026
Jurisdiction: Equity - Corporations List
Before: Nixon J
Decision: Order made for winding-up of Defendant on just and equitable ground and orders for ancillary relief.
Catchwords: CORPORATIONS – application to wind up on just and equitable ground – where Defendant offered bonds and other financial products to retail clients – where ASIC has investigated Defendant’s dealings with clients and use of client funds – where sole director did not have oversight of Defendant’s business operations – where Defendant does not oppose winding up application – whether evidence establishes grounds for a lack of confidence in the conduct and management of Defendant – whether evidence establishes a risk to the public interest that warrants protection by a winding up order
Legislation Cited: Corporations Act 2001 (Cth) ss 461, 462, 464, 465A, 467
Corporations Regulations 2001 (Cth) regs 5.4.01A, 5.6.75
Supreme Court (Corporations) Rules 1999 (NSW) r 5.6
Cases Cited: Australian Securities and Investments Commission v 24-U Pty Ltd [2025] FCA 321
Australian Securities and Investments Commission v ABC Fund Managers (2001) 39 ACSR 443; [2001] VSC 383
Australian Securities and Investments Commission v Activesuper Pty Ltd (No 2) [2013] FCA 234
Australian Securities and Investments Commission v Finchley Central Funds Management Ltd [2009] FCA 1110
In the matter of DJG Securities Pty Ltd [2013] NSWSC 588
Queensland Phosphate Pty Ltd v Korda [No 2] [2019] VSCA 215
Category: Principal judgment
Parties: Australian Securities and Investments Commission (Plaintiff)
Capital Guard AU Pty Ltd (Defendant)
Representation: Counsel:
S Patterson (Plaintiff)
Solicitors:
Australian Securities and Investments Commission
File Number(s): 2026/00290408
Publication restriction: Nil
By Amended Originating Process filed 22 July 2026, the Australian Securities and Investments Commission (ASIC) seeks an order for the winding up of Capital Guard AU Pty Ltd on the just and equitable ground.
The winding-up application is not opposed by Capital Guard or by Mr Mark Tasiyan, who is Capital Guard’s sole director and secretary and also its sole shareholder.
No other interested person has sought to be heard on the application.
As outlined below, the basis for the application is that ASIC has, through its ongoing investigation into Capital Guard, uncovered evidence of matters which, in ASIC’s submission, give rise to a lack of confidence in the conduct and management of the affairs of the company and a risk to the public interest that warrants protection.
Pursuant to ss 462(2) and 464 of the Corporations Act 2001 (Cth), ASIC has standing to apply for a winding-up order in relation to a company in circumstances where ASIC is investigating, or has investigated, under Div 1 of Part 3 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), matters connected with the affairs of that company.
ASIC has standing under this provision, as it commenced an investigation into Capital Guard, pursuant to s 13 of the ASIC Act, on 1 September 2025. The scope of the investigation was expanded in March 2026, and it currently relates to suspected contraventions by Capital Guard of s 912A of the Corporations Act (the obligations of Australian Financial Services (AFS) licensees); s 1041G (dishonest conduct); and s 1041H (misleading or deceptive conduct).
Section 465A of the Corporations Act imposes three obligations on a person who applies under, relevantly, s 464 for a company to be wound up.
First, the applicant must lodge notice of the winding-up application in the prescribed form: s 456A(1)(a). ASIC did so on 15 July 2026.
Secondly, the applicant must serve the winding-up application on the company within 14 days after it is made: s 465A(1)(b). The Originating Process was filed on 14 July 2026 and, on the same date, ASIC served this document and supporting affidavit on Capital Guard by delivering them to its registered address.
Thirdly, the applicant must publish a notice setting out the prescribed information about the application in the prescribed manner: s 465A(1)(c). On 20 July 2026, ASIC published a notice containing the information prescribed by reg 5.4.01A of the Corporations Regulations 2001 (Cth) on its website (being the manner of publication prescribed by reg 5.6.75).
However, ASIC has identified a potential issue regarding compliance with r 5.6(2) of the Supreme Court (Corporations) Rules 1999 (NSW) which provides, relevantly, that the publication of the notice must occur at least seven days before the date fixed for the hearing of the application.
In order to address any potential issue of non-compliance, ASIC seeks an order, pursuant to s 467(3)(b) of the Corporations Act, dispensing with this requirement.
In support of this application, ASIC referred to the decision of Black J in In the matter of DJG Securities Pty Ltd [2013] NSWSC 588. In that case, his Honour dispensed altogether with the publication requirement in s 465A(1)(c) in respect of an unopposed winding-up application brought by a creditor. His Honour observed (at [15]) that he did so in circumstances where there was “no suggestion that the failure to publish an advertisement would cause any substantial disadvantage to any other creditor, and no real likelihood that any other creditor would have sought to intervene or succeeded in persuading of the court, that these circumstances did not warrant a winding up order”.
In the present case, the winding-up application is unopposed and is brought by the corporate regulator with a view to protecting the interests of the public, including Capital Guard’s clients, and there has been publication of the prescribed material in the prescribed manner, but the period of publication is, at most, one day short of the period specified in r 5.6(2) of the Corporations Rules. I accept ASIC’s submission that, in these circumstances, any minor non-compliance with r 5.6(2) is unlikely to cause substantial disadvantage to any creditor of Capital Guard. I will accordingly make a dispensing order in the terms sought.
Under s 461(1)(k) of the Corporations Act, the Court may order the winding up of a company if the Court is of the opinion that it is just and equitable to do so.
In Australian Securities and Investments Commission v ABC Fund Managers (2001) 39 ACSR 443; [2001] VSC 383 at [119], Warren J set out three “general fundamental principles” with respect to a winding up on the just and equitable ground:
“First, there needs to be a lack of confidence in the conduct and management of the affairs of the company”;
“Second, in these types of circumstances it needs to be demonstrated that there is a risk to the public interest that warrants protection”; and
“Third, there is a reluctance on the part of the courts to wind up a solvent company.”
In Australian Securities and Investments Commission v Activesuper Pty Ltd (No 2) [2013] FCA 234, Gordon J made the following observations (at [21]-[24]) regarding the application of those three “general fundamental principles”.
As regard the first, “a lack of confidence may arise where, ‘after examining the entire conduct of the affairs of the company’ the Court cannot have confidence in ‘the propensity of the controllers to comply with obligations, including the keeping of books, records and documents, and looking after the affairs of the company’”.
As regards the second, “a risk to the public interest may take several forms. For example, a winding up order may be necessary to ensure investor protection or where a company has not carried on its business candidly and in a straightforward manner with the public”.
As regards the third, “it has been said that ‘a stronger case might be required where the company was prosperous, or at least solvent’”.
Similar observations were made by the Victorian Court of Appeal in Queensland Phosphate Pty Ltd v Korda [No 2] [2019] VSCA 215 at [264]-[266] (Kyrou, McLeish and Niall JJA).
In Australian Securities and Investments Commission v Finchley Central Funds Management Ltd [2009] FCA 1110 at [3], Gilmour J explained that ASIC stands in a somewhat different position to a private applicant for a winding-up order on the just and equitable ground, “because the public interest considerations attaching to ASIC as the corporate regulator are relevant to the application”. His Honour added that: “Where companies are engaged in fund management and there is evidence of serious mismanagement or repeated breaches of the Act so that there is a risk to the public, and in circumstances where ASIC has lost confidence in the company to comply with the relevant law, the court may act to wind up that company on the just and equitable ground”.
In Australian Securities and Investments Commission v 24-U Pty Ltd [2025] FCA 321 at [14], Stewart J identified that the absence of opposition to a winding up application by the company or any director is a matter which supports the winding-up application. His Honour observed that: “It can hardly be said that the court can have any confidence in the management of the affairs of a company if neither it by a lawyer nor any director turns up to oppose its winding up.”
Capital Guard was registered on 24 February 2014. It was previously named:
Condell Financial Pty Ltd, from the time of its registration until 18 February 2022; and
Condell Wealth Advisers Pty Ltd, from 18 February 2022 until 31 July 2024.
Mr Vassos Dimitrou was the sole director and secretary of Capital Guard in the period from 17 July 2024 to 1 October 2024.
Mr Tasiyan has been the sole director and secretary of Capital Guard since 1 October 2024. He has also been the sole shareholder of Capital Guard since that date.
At all times from 15 August 2017 to 29 June 2026, Capital Guard held an AFS licence. The version of the AFS licence which was current from 1 August 2024 authorised Capital Guard to provide financial product advice to retail and wholesale clients in respect of specified classes of financial products, and to deal in those same classes of financial products.
On 29 June 2026, ASIC cancelled Capital Guard’s AFS licence, pursuant to s 915C of the Corporations Act.
ASIC tendered web captures of Capital Guard’s website as at 2 July 2025 and 29 May 2026. These documents show that, as at those dates, Capital Guard was promoting itself as a specialist in fixed income securities, such as corporate bonds. For example, a page headed “Why Choose Capital Guard?”, which was on the website as at both those dates, stated that Capital Guard had a “Focus on Fixed-Income Investments”:
“Specializing in Australian fixed-income securities, we provide bonds and other responsible investment strategies for predictable returns”.
ASIC has, through its investigation of Capital Guard, found evidence which indicates that Capital Guard purported to sell to retail clients, or to acquire on behalf of retail clients, corporate bonds which either did not exist or in which Capital Guard did not have any interest to be able to sell or to hold on behalf of its clients.
ASIC tendered evidence of Capital Guard’s dealings with four retail clients who, for reasons of confidentiality, are described below as Clients A to D.
On 30 April 2025, Capital Guard sent Client A a document that purported to be a prospectus in relation to a bond with a specific International Securities Identification Number (ISIN) that was issued by Macquarie Group Ltd. On 19 May 2025, Client A transferred $100,000 (plus fees) to Capital Guard for investment in that bond.
In May 2025, Macquarie placed a warning on its website that it had become aware that “scammers” who were “posing as representatives of Capital Guard are attempting to solicit investments in … fake Macquarie-branded bonds”. This warning was accompanied by a picture of a page from the prospectus which had been provided by Capital Guard to Client A.
Macquarie has confirmed to ASIC that it has not issued any product which matches the specifications in the prospectus issued by Capital Guard to Client A, and that the ISIN for the bond offered by Capital Guard related to unsecured notes which had been issued by a different Macquarie entity, which were not offered to retail investors, and which had, in any case, been redeemed in full on 1 May 2025 (that is, prior to funds being transferred by Client A to Capital Guard for investment in the purported Macquarie bond).
On 6 January 2026, Capital Guard sent Client B a brochure setting out a number of corporate bonds which were available for investment through Capital Guard, including a bond purportedly issued by Liberty Funding Pty Ltd with an ISIN ending x826.
On 21 January 2026, Client B transferred $250,000 (plus fees) to Capital Guard, and was issued with a Digital Certificate. This document recorded that Capital Guard had, as Client B’s agent, acquired on 21 January 2026 a bond issued by Liberty Funding with the ISIN ending x826, which it held on Client B’s behalf.
The Chief Financial Officer of Liberty Financial Group Ltd, which is the parent company of Liberty Funding, has confirmed to ASIC that, while Liberty Funding did issue a bond with the ISIN ending x826, that bond was only available to wholesale clients, and that any “repackaged” product “offered to retail investors” had been done by Capital Guard “without our knowledge and permission”. Further, the details of the bond advertised by Capital Guard did not match the Liberty Funding bond with the same ISIN: “The bonds we issued in 2023 were floating rate (not fixed), the coupon rates noted are all incorrect and the maturity dates are all incorrect”.
ASIC’s forensic analysis of Capital Guard’s dealings with client funds has not identified any payment being made by Capital Guard to Liberty Funding for the purpose of acquiring the Liberty Funding bond; and Capital Guard has not produced any documents evidencing that it acquired or held any such bond.
On 3 February 2026, Client C transferred a sum of $100,000 (plus fees) to Capital Guard for the purpose of investing in a bond issued by Judo Bank Pty Ltd. On 5 February 2026, Client C transferred a further $20,000 (plus fees) to Capital Guard for the purpose of investing in a bond issued by the Peppers Residential Securities Trust. Capital Guard issued two Digital Certificates to Client C which represented that it had, as Client C’s agent, purchased bonds in these respective amounts from Judo Bank and Peppers, with specified ISINs, which it held on Client C’s behalf.
ASIC’s forensic analysis of Capital Guard’s dealings with client funds has not identified any payment being made by Capital Guard for the purpose of acquiring any such bonds from Judo Bank or Peppers, and Capital Guard has not produced any documents evidencing that it acquired or held any such bonds.
While there is evidence that Capital Guard acquired interests in two bonds issued by Judo Bank (as discussed below), neither of those bonds had the ISIN of the Judo Bank bond which Capital Guard purported to acquire on Client C’s behalf.
On 9 June 2026, Capital Guard sent Client D a brochure for a bond issued by Liberty Funding with an ISIN ending x746. On 19 June 2026, Client D transferred $160,000 (plus fees) to Capital Guard for investment in the Liberty Funding bond.
As noted above, Capital Guard’s AFS licence was cancelled on 29 June 2026. On 2 July 2026, Client D sent an email to Liberty, attaching the brochure which had been provided to him by Capital Guard, and asking whether Liberty had any information regarding this investment. On the following day, Liberty replied that “the investment materials provided to you by Capital Guard do not represent a legitimate Liberty security offering”. The Chief Financial Officer of Liberty has also provided similar confirmation to ASIC.
As outlined below, ASIC has, through its investigation, uncovered evidence that Capital Guard provided documents to its auditor, Mr Chassey Davids of Australian Audit Pty Ltd, which contained false information regarding its holdings of interests in corporate bonds.
On 17 April 2026, Mr Davids sent an email addressed to Mr Tasiyan and Mr Dimitrou, stating that Capital Guard had failed to provide him with “critical information, relating to client investment monies, as requested”, and that he would be lodging a breach report with ASIC. One hour later, Mr Dimitrou replied to Mr Davids, attaching “statements from our providers”. The attachments included three documents which purported to be account statements for an account which Capital Guard held with FIIG Securities Ltd with account number 2000317293. The dates of those purported statements were October 2025, November 2025 and December 2025.
The bonds recorded in these documents included the Liberty Funding bond which Capital Guard had purported to acquire on Client B’s behalf, and the Peppers bond which Capital Guard had purported to acquire on Client C’s behalf. In addition, these account statements purported to record the purchase and holding of bonds issued by various other entities, including National Australia Bank Limited, Commonwealth Bank, Australia and New Zealand Banking Group, and Barclays PLC.
ASIC has obtained account statements from FIIG for the account number 2000317293 as at October 2025, November 2025 and December 2025. Unlike the purported account statements for that same account number as at those same dates which Mr Dimitrou sent to Mr Davids, the FIIG documents record Capital Guard as holding only two bonds, issued by Judo Bank, in an amount of $50,000 each. Neither of these bonds bears an ISIN matching the Judo Bank bond which Capital Guard purported to acquire on behalf of Client C.
ASIC has conducted a forensic analysis of the accounts into which Capital Guard received funds from clients for investment purposes.
As a result of this investigation, ASIC has determined that Capital Guard received some $17.414m into various accounts opened from 28 April 2025 onwards. There is presently only around $110,000 remaining in those accounts.
ASIC’s forensic analysis has identified that, from these client funds, an amount of around $9m appears to have been transferred to various crypto-asset platforms; there has been a net outgoing of around $4.1m in transactions on currency exchanges; and an amount of around $2.2m has been returned to clients in the form of purported interest or dividend payments or the repayment of principal.
ASIC has identified only $100,000 as having been used by Capital Guard to invest in corporate bonds (being the two Judo Bank bonds described at paragraph [45] above).
ASIC’s investigation to date has not identified any other significant assets held by Capital Guard.
ASIC’s investigation has uncovered evidence that Capital Guard’s sole director, Mr Tasiyan, had essentially no involvement in its operations.
Capital Guard produced to ASIC an organisational chart which identified Mr Tasiyan as being the sole director of Capital Guard and as having the role of “CEO/Managing Director”. The chart records Mr Tasiyan’s responsibilities in these roles as including “Governance oversight”, “Breach reporting escalations”, “ensur[ing] implementation of audit recommendations” and being “[a]ccountable for AFSL”.
In the course of an examination pursuant to s 19 of the ASIC Act, Mr Tasiyan gave evidence to the effect that he had no role in managing or overseeing Capital Guard’s business. In particular, he gave evidence that:
he became director of Capital Guard at Mr Dimitrou’s suggestion;
he opened a number of bank accounts for Capital Guard and provided the log-in credentials to Mr Dimitrou;
he had only been to Capital Guard’s office on one occasion;
he had never sent an email from the Capital Guard email account which was in his name;
he did not know where the business records for Capital Guard were kept;
he did not have any oversight of Capital Guard’s operations, and only received verbal updates from Mr Dimitrou to the effect that everything was “going okay” and that “everyone’s happy”;
he did not know what level of funds went through Capital Guard, what funds Capital Guard had under management, what its expenses were, or whether it invested in cryptocurrency; and
he had not seen Capital Guard’s FY2025 financial report prior to being shown the document in his s 19 examination and did not give any authority for his electronic signature to be placed on it.
The most recent financial report of Capital Guard is its FY2025 report, which Mr Davids sent to Mr Tasiyan and Mr Dimitrou by email on 29 April 2026.
Although the directors’ report and directors’ declaration appear to be signed by Mr Tasiyan, he has (as noted above) denied ever seeing this report or giving authority for his signature to be applied to it.
According to the FY2025 report, Capital Guard recorded a loss of $123,785 in FY2025, and had net liabilities of $37,186 as at the end of that financial year. Note 1 to the financial statements included within the FY2025 report refers to “the existence of a material uncertainty that may cast doubt on [Capital Guard’s] ability to continue as a going concern”.
In his independent auditor’s report, Mr Davids drew attention to this material uncertainty related to Capital Guard’s ability to continue as a going concern, and stated that he did not express an opinion on the FY2025 report. The reasons for his disclaimer of opinion were as follows:
“Basis for Disclaimer of Opinion
We were unable to obtain sufficient appropriate audit evidence to provide a basis for an audit opinion on the financial statements due to a pervasive limitation of scope. Specifically, we were unable to confirm the existence of, ownership, and valuation of the reported investment balances. Furthermore, we were unable to establish contact with or verify the identity of the director of the entity despite attempts via registered communication channels. This absence of governance oversight prevented us from verifying management representations or performing alternative audit procedures. As a result of these matters, we were unable to determine whether any adjustments might have been found necessary in respect of recorded or unrecorded investment assets, and the elements making up the statement of comprehensive income, statement of changes in equity and statement of cash flows.”
On 2 July 2026, ASIC was forwarded an email which Capital Guard had sent one of its clients earlier on the same day. In this email, Capital Guard stated that it had “commenced the process of winding down its operations”. It further stated that, as part of this “winding down” process, any bond holdings, investment positions and portfolio interests were being “assessed for liquidation”.
On the same date, ASIC wrote to Capital Guard’s then solicitors, Blackbay Lawyers, seeking information regarding this foreshadowed “winding down” process. In particular, ASIC sought information regarding the specific steps that would be involved in such a process; any steps which Capital Guard had already taken to give effect to this process; the anticipated timeframe for this process and for each of the steps in it; and particulars of the assets which would be the subject of this “winding down” process.
On the following day, 3 July 2026, Blackbay Lawyers replied that, despite having had communications with their client about ASIC’s letter, they had been unable to obtain instructions about those matters.
The evidence outlined above establishes strong grounds for a lack of confidence in the conduct and management of Capital Guard. In particular, the evidence indicates that:
first, Capital Guard has misled clients into transferring significant funds to Capital Guard in the belief that they were thereby investing in bonds which either did not exist or in which Capital Guard held no interest;
secondly, Capital Guard has provided purported account statements to its auditor which contain false information regarding its bond holdings;
thirdly, while Capital Guard has received around $17.4m from its clients, it has purchased only $100,000 worth of bonds, with the majority of the client funds having been transferred to crypto-asset platforms, such that Capital Guard has no significant assets which ASIC has been able to identify; and
fourthly, Capital Guard’s sole director, Mr Tasiyan, who is named in its internal documents as its CEO/Managing Director, has exercised no oversight over its operations and claims to have no knowledge of any aspects of those operations.
I accept ASIC’s submission that these matters also demonstrate that there is a risk to the public interest that warrants protection by way of an order for the winding up of Capital Guard and the appointment of independent liquidators.
There is no basis to conclude that Mr Tasiyan is in a position to regularise Capital Guard’s affairs and to protect the interests of its clients. It would be contrary to the public interest to leave the management of Capital Guard in the hands of whatever (unidentified) persons are in control of that entity, or to await the implementation of some unspecified “winding down” process by those persons. Instead, the public interest, and the interests of Capital Guard’s clients, would best be served by the appointment of liquidators to take control of its books and accounts, and to take steps to identify its creditors and assets.
Finally, while there is a reluctance on the part of the courts to wind up a solvent company, there are good reasons to doubt the solvency of Capital Guard. Its most recent financial report recorded a loss, and indicated the existence of a material uncertainty about its ability to continue as a going concern.
Further, given:
the matters identified by the auditor when providing his disclaimer of opinion in the FY2025 report (see paragraph [57] above);
the provision of documents to the auditor which contained false information about Capital Guard’s assets; and
the fact that Capital Guard has received over $17.4m from clients, but has invested only a small fraction of that amount in corporate bonds;
Capital Guard’s true financial position may well be significantly worse than as recorded in its FY2025 report.
For those reasons, I am of the opinion that it is just and equitable that Capital Guard be wound up.
Accordingly, I make the following orders:
Pursuant to s 467(3)(b) of the Corporations Act, the requirement in r 5.6(2)(b) of the Corporations Rules that the notice under s 465A(1)(c) of the Corporations Act be published at least seven days before the date fixed for the hearing of the plaintiff’s application for an order pursuant to s 461(1)(k) of the Act, be dispensed with.
Pursuant to s 461(1)(k) of the Corporations Act, the defendant be wound up on the ground that the Court is of the opinion that it is just and equitable that it be wound up.
That the plaintiff provides to the liquidators:
(a) all books and records in the plaintiff’s possession that the plaintiff considers relevant to the liquidators’ roles; and (b) all evidence relied on by the plaintiff in these proceedings.
**********