Australian Securities and Investments Commission

[2006] VSC 192

Supreme Court of Victoria

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For Australian Law.

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Interrogate

Catchwords

1. Corporations
2. › Financial services and products
3. › Financial services business
4. › Whether establishing and managing self-managed superannuation funds constitutes carrying on a financial services business
5. › Whether marketing property investments constitutes carrying on a financial services business
6. › Whether directors and officers personally carry on a financial services business
7. › Corporations Act 2001 (Cth), ss 762A, 763B, 764A(1)(g), 766A(1), 766B(1), 766C(1), 911A
1. Corporations
2. › Directors and officers
3. › Duties
4. › Duty of care and diligence
5. › Duty to act in good faith and for proper purpose
6. › Duty not to make improper use of position
7. › Whether officers were 'involved' in contraventions by others
8. › Corporations Act 2001 (Cth), ss 79, 180(1), 181(1), 182(1)
1. Corporations
2. › Misleading and deceptive conduct
3. › Conduct in relation to financial products and services
4. › Silence as misleading conduct
5. › Representations as to future matters without reasonable grounds
6. › Attribution of director's conduct to corporation
7. › Corporations Act 2001 (Cth), ss 769B, 769C(1), 1041E, 1041H
8. › Australian Securities and Investments Commission Act 2001 (Cth), ss 12BB(1), 12DA, 12DB, 12GH
1. Evidence
2. › Privilege against self-incrimination
3. › Statements made during ASIC examination under s 19
4. › Whether derivative use immunity applies
5. › Australian Securities and Investments Commission Act 2001 (Cth), ss 19, 68(3), 78

Quick Take

Section 763B(b) of the Corporations Act (no day-to-day control element of 'financial investment') is assessed as a matter of fact, not by reference to the structure of the arrangement; accordingly, joint venture arrangements that nominally provide investor control may still constitute financial investments if investors have no actual control. Directors and officers of companies carrying on a financial services business without an AFS licence are personally required to hold their own licence under s 911B. Provisional liquidators' reports are not 'books' of the body corporate for the purposes of s 1305 and do not attract the prima facie evidence presumption.