Australian Securities and Investments Commission v ACBF Funeral Plans Pty Ltd [2024] FCAFC 19

Australian Securities and Investments Commission v ACBF Funeral Plans Pty Ltd [2024] FCAFC 19

ACBF admitted in its defence that it was not Aboriginal owned or managed during the relevant period, and the evidence established the falsity of the representation. The primary judge erred in concluding otherwise. The appellant succeeded, and the matter is remitted for penalty determination.

Source-derived case information.

Parties
Appellant: Australian Securities and Investments Commission; First Respondent: ACBF Funeral Plans Pty Ltd (in liquidation); Second Respondent: Youpla Group Pty Ltd (in liquidation); Contradictor: Ms Caryn van Proctor
Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Appeal / Decision of Full Court After Appeal From Single Judge
Outcome
Appeal allowed. Declaration made. Orders set aside in part. Matter remitted to primary judge for re-determination of penalty.
Legal Topics
False and Misleading Representations, Misleading or Deceptive Conduct, Funeral Insurance, Aboriginal Ownership or Management, Pleadings and Admissions, Evidence in Appellate Procedure, Liquidation of Companies, Remittal to Trial Judge for Penalty
Consumer Law Corporations False and Misleading Representations Misleading or Deceptive Conduct Funeral Insurance Aboriginal Ownership or Management Pleadings and Admissions Evidence in Appellate Procedure +2 more

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Parties

Australian Securities and Investments Commission

Appellant

ACBF Funeral Plans Pty Ltd (in liquidation)

First Respondent

Youpla Group Pty Ltd (in liquidation)

Second Respondent

Ms Caryn van Proctor

Contradictor

Procedural Posture

Appeal / Decision of Full Court After Appeal From Single Judge

Legal Issues

  1. 1 Whether ACBF Funeral Plans Pty Ltd, during the relevant period, made a representation that it was owned or managed by an Aboriginal person or persons
  2. 2 Whether the falsity of that representation was established
  3. 3 Whether there was an admission in the pleadings as to falsity

Ratio Decidendi

ACBF admitted in its defence that it was not Aboriginal owned or managed during the relevant period, and the evidence established the falsity of the representation. The primary judge erred in concluding otherwise. The appellant succeeded, and the matter is remitted for penalty determination.

Court Disposition

Appeal allowed. Declaration made. Orders set aside in part. Matter remitted to primary judge for re-determination of penalty.

Orders

  • Declaration that by representing during the relevant period that the first respondent was owned or managed by an Aboriginal person or persons, the first respondent contravened ss 12DA(1) and 12DB(1)(f) of the ASIC Act.
  • Appellant given leave to file affidavit of Lucy Rees-Graham.