Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCAFC 25

Federal Court of Australia

Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCAFC 25 Appeal from: Australian Securities and Investments Commission v Provide Nominees Pty Ltd [2023] FCA 1137 Australian Securities and Investments Commission v Provide Nominees Pty Ltd (No 2) [2023] FCA 1308

File number: VID 867 of 2023

Judgment of: LEE, ANDERSON AND MCELWAINE JJ

Date of judgment: 22 February 2024

Date of publication of reasons: 6 March 2024

Catchwords: CORPORATIONS – application made by the Australian Securities and Investments Commission (ASIC) under s 70(3) of the Australian Securities and Investments Act 2001 (Cth) (ASIC Act) – where failure to comply with notice issued pursuant to s 33(1) of the ASIC Act – where primary judge held ASIC fulfilled pre-condition in s 70(2) requiring ASIC to certify in writing the failure to comply – whether primary judge erred in finding the Court was empowered to conduct inquiry pursuant to s 70(3) – whether s 70(2) requires certification by ASIC of a failure "without reasonable excuse" – meaning of "failure" in s 70(1) – consideration of legislative history – notice of contention upheld – appeal dismissed with costs

Legislation: Acts Interpretation Act 1901 (Cth) s 18A Australian Securities and Investments Commission Act 2001 (Cth) Pt 3, ss 13, 33, 70, 70(1), 70(2), 70(3) Federal Court of Australia Act 1976 (Cth) s 47 Companies Act 1981 (Cth) (repealed) ss 297(1), 297(2) National Companies and Securities Commission Act 1979 (Cth) (repealed) s 39(7) Securities Industry Act 1980 (Cth) (repealed) ss 19(13), 19(14) Companies Act 1961 (Vic) (repealed) s 175(1) Explanatory Memorandum, Australian Securities Commission Bill 1988 (Cth), cl 70 Explanatory Memorandum, Companies Bill 1981 (Cth)