Australian Securities & Investments Commission v Aboriginal Community Benefit Fund Pty Ltd [2004] FCA 178

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Aboriginal Community Benefit Fund Pty Ltd [2004] FCA 178 CORPORATIONS – prohibition on unsolicited offering of financial products – prohibition not operative if product a funeral expenses policy – funeral expenses policy defined by reference to a scheme or arrangement – scheme or arrangement to be for the sole purpose of meeting funeral or burial expenses – meaning to be given to phrase 'scheme or arrangement' – whether scheme or arrangement limited to terms of trust deed – extent to which a scheme or arrangement regulated by a trust deed can be subsequently modified – scheme or arrangement not limited to terms of deed – modification only possible to the extent permitted by the deed – purported modification ineffective – original provisions of deed caused products to fall within legislative prohibition

Corporations Act 2001 (Cth) s 761A, 762A, 763A, 765A(1)(w), 765A(1)(y), 992A Corporations Amendment Regulations 2003 (No 1) (Cth) Regulation 7.1.07D Funeral Funds Act 1979 (NSW) Life Insurance Act 1995 (Cth) s 11(1), 11(3), 11(3)(e)

Federal Court Rules Order 29 r 2

Australian Securities & Investment Commission v Takaran (2003) 43 ACSR 46 cited Australian Securities Commission v Su (1994) 17 ASCR 94 distinguished Australian Softwood Forests Pty Ltd v Attorney-General for the State of NSW; ex relatione Corporate Affairs Commission (1981) 148 CLR 121 cited Corporate Affairs Commission (NSW) v Lamb and Nash International (No 2) (1987) 9 NSWLR 497 distinguished Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 cited Re British Basic Slag Ltd's Agreements [1963] 2 All ER 807 cited Fords Principles of Corporations Law [22.472], [22.490] AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v ABORIGINAL COMMUNITY BENEFIT FUND PTY LTD AND ANOR N 3056 OF 2003 HELY J 5 MARCH 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA