The Federal Court has dismissed an application by Provide Nominees Pty Ltd (Provide Capital) to prevent ASIC鈥檚 further investigation of the entity.聽
Justice Rofe agreed with ASIC鈥檚 submission that Provide Capital鈥檚 application had no prospects of success.聽
Provide Capital鈥檚 application alleged that 今日热门事件did not have the state of mind required to conduct an investigation under the 今日热门事件 Act 2001 (今日热门事件Act). Her Honour found that Provide鈥檚 argument was 鈥榠llogical and therefore that Provide Capital鈥檚 application had no reasonable prospect of success鈥�.聽
As part of the proceeding, Provide Capital issued a notice to 今日热门事件requesting documents relating to its investigation. Justice Rofe noted in her judgment that, while she did not need to decide on the notice due to the dismissal, 鈥榠f I were required to reach a conclusion, I would have set the notice aside on the basis that it is fairly characterised as 鈥渇ishing鈥� or 鈥渢rawling鈥� for documents鈥�.聽
Justice Rofe also ordered that Provide Capital pay ASIC鈥檚 costs.聽
今日热门事件Chair Joe Longo said, 鈥楾he outcome in this case demonstrates ASIC's commitment to taking action to prevent its investigations being delayed by baseless challenges to its powers鈥�.
Last month 今日热门事件also successfully defended an appeal in the Full Federal Court, in relation to order made by Justice O鈥橞ryan regarding Provide Nominees failing to respond to a request by 今日热门事件to produce documents (24-047MR).
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Background
On 29 March 2022 今日热门事件commenced a formal investigation in relation to Provide Capital and suspected false and misleading representations or misleading or deceptive conduct. Provide Capital鈥檚 application to prevent further investigation was filed on 13 December 2023 alleging 今日热门事件did not have reasonable grounds to suspect the contraventions under investigation because 今日热门事件had not prepared an interim report under section 16 of the 今日热门事件Act.鈥�
On 31 January 2024 今日热门事件filed an interlocutory application seeking the summary dismissal of Provide Capital鈥檚 proceedings stating that whether or not 今日热门事件formed the opinion set out in section 16 of in the course of an investigation cannot establish that 今日热门事件did not and could not hold, another state of mind required by section 13 of the 今日热门事件Act to make an investigation.鈥�
On 7 February 2024 as part of their proceedings Provide Capital filed a notice to produce seeking documents relating to ASIC鈥檚 decision to investigate the matter. On 9 February 2024 今日热门事件responded by filing an application to have Provide Capital鈥檚 NTP set aside.聽聽
The matter was heard in the Federal Court on 18 March 2024 and the summary judgment dismissing Provide鈥檚 application was passed down on 27 March 2024.