The Full Federal Court has rejected the appeal of Provide Nominees, operating as Provide Capital, against a previous order to produce documents to the ASIC.
The ruling enforces Provide Capital’s obligation to comply with ASIC’s notice, underlining the regulatory body’s authority in its investigative processes.
During an ongoing investigation, ASIC had issued a notice to Provide Capital, demanding the production of specific documents, a request Provide Capital did not fulfill, according to an ASIC news release.
Under the ASIC Act’s section 33, ASIC possesses the authority to require document production from entities, and section 70 allows the regulator to seek court enforcement for non-compliance.
Provide Capital contested ASIC’s certification process, arguing it lacked the specification of “without reasonable excuse,” a claim the court found unnecessary for ASIC to certify.
The court’s decision, delivered by justices Michael Lee, Stewart Anderson, and Shaun Brendan McElwaine, confirmed the validity of the orders made by Justice Hugh O’Bryan, mandating Provide Capital to produce the requested documents and to bear ASIC’s legal expenses.
“The evidence before the court demonstrates a history of delay and obfuscation on the part of Provide in complying with the notice,” O’Bryan said. “The most egregious example is the redaction of documents produced to ASIC.”
This legal development is part of ASIC’s continued scrutiny of Provide Capital, sparked by the company’s incomplete compliance and document redactions. The initiation of legal proceedings on Dec. 2, 2022 and the subsequent court order on Sept. 25, 2023 underline the regulator’s commitment to enforcing transparency and compliance within the financial sector.
Recently, ASIC’s allegations led the Federal Court to rule against RM Capital for allowing SMSF Club to accept conflicted payments from referral fees linked to Positive RealEstate property purchases through SMSFs. In another Federal Court case initiated by ASIC, Finder Wallet’s Finder Earn, a crypto asset-linked product, was determined to not be a financial product, exempting it from needing a financial services license.
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