Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 1644

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 1644 File number(s): VID 1367 of 2017

Judge(s): O'CALLAGHAN J

Date of judgment: 2 November 2018

Catchwords: SUPERANNUATION – application from ASIC for court approval of declarations, injunctions and costs – where defendant company contravened numerous provisions of Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) and the National Consumer Credit Protection Act 2009 (Cth) – where scheme created for "borrowers" to access small amounts of money – where company earned money by transferring "borrowers" to a retail superannuation fund and advising them to obtain insurance, thereby collecting commissions and fees in excess of the "loan" amount – where ASIC and defendant company reached agreement on liability for contravention of the statutory provisions and penalties – application approved by court

Legislation: Corporations Act 2001 (Cth), ss 761A, 761G, 766A, 766B, 769C, 912A, 961, 961B, 961G, 961H, 961J, 961L, 1041H, 1101B, 1317E, 1317G, 1324 Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 (Cth) Australian Securities and Investments Commission Act 2001 (Cth), ss 12BB, 12CB, 12CC, 12DA, 12DB, 12DF, 12GBA, 12GD National Consumer Credit Protection Act 2009 (Cth), ss 5, 6, 29, 160D, 166, 167, 177

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 Australian Securities Commission v Donovan (1998) 28 ACSR 583 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (No 2) [2015] FCA 527 Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; [2002] NSWSC 483 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 3) (2012) 213 FCR 380 Australian Securities and Investments Commissions v Camelot Derivatives Pty Limited (in liquidation) [2012] FCA 414 Australian Securities and Investments Commission v Channic Pty Ltd (No 5) [2017] FCA 363 Australian Securities and Investments Commission v Citrofresh International Ltd (2007) 164 FCR 333 Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 2 Australian Securities and Investments Commission v GE Capital Finance Australia [2014] FCA 701 Australian Securities and Investments Commission v Golden Financial Group Pty Ltd (No 2) [2017] FCA 1267 Australian Securities and Investments Commission v Monarch FX Group Pty Ltd [2014] FCA 1387 Australian Securities and Investments Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 Australian Securities and Investments Commission v Pegasus Leverages Options Group Pty Ltd (2002) 41 ACSR 561; [2002] NSWSC 310 at 571 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132 Australian Securities and Investments Commission v Newcrest Mining Limited [2014] FCA 698 Australian Securities and Investments Commission v NSG Services Pty Ltd [2017] FCA 345 Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 3) [2015] NSWSC 1527 Australian Securities and Investments Commission v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167 Australian Securities and Investments Commission v The Cash Store Pty Ltd (in liq) (No 2) [2015] FCA 93 Australian Securities and Investments Commission v Vines (2006) 58 ACSR 298; [2006] NSWSC 760 Australian Securities and Investments Commission v Warrenmang Ltd [2007] FCA 973 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 Permanent Mortgages Pty Limited v Spartacus Enterprises Pty Limited [2013] NSWSC 911 Re Ku-ring-gai Co-operative Building Society (No 12) (1978) 36 FLR 134; [1978] FCA 50 Rupert Co Ltd v Imperial One Ltd (2003) 45 ACSR 18; [2003] NSWSC 217 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Trade Practices Commission v CSR Limited [1990] FCA 521 W & A McArthur Ltd v Queensland (1920) 28 CLR 530 Weitmann v Katies Ltd (1977) 29 FLR 336