Australian Securities and Investments Commission v Open4Sale Global Ltd [2024] FCA 718

Australian Securities and Investments Commission v Open4Sale Global Ltd [2024] FCA 718

The Court was satisfied that the second defendant had been served with the initiating documents, interlocutory application and supporting affidavit through the solicitor then on the record, and that he had not filed an address for service or appeared. On ASIC's uncontradicted material there was a serious question to be tried as to his liability for the alleged contraventions. The balance of convenience favoured relief because the injunctions restrained conduct already prohibited by the Corporations Act 2001 (Cth), would cause no evident practical inconvenience, and had utility because breach could attract contempt sanctions. ASIC was not required to give an undertaking as to damages...

Jurisdiction
Australia
Judgment Date
21 June 2024
Procedural Posture
Interlocutory Application for Injunctions Under S 1324(4) of the Corporations Act 2001 (cth) / Interlocutory Application Determined on 21 June 2024; First and Third Defendants Consented, and the Application Against the Second Defendant Was Determined in His Absence
Outcome
Interlocutory injunctions granted; first and third defendants by consent, and second defendant in his absence. Defendants ordered to pay ASIC's costs of and incidental to ASIC's application filed on 10 May 2024.
Legal Topics
['interlocutory Injunctions' 'disclosure Documents for Offers of Securities' 'default of Appearance' 'service and Address for Service' 'regulator Enforcement Proceedings']
['practice and Procedure' 'corporations Law' 'securities Regulation'] ['interlocutory Injunctions' 'disclosure Documents for Offers of Securities' 'default of Appearance' 'service and Address for Service' 'regulator Enforcement Proceedings']

Case Brief

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Procedural Posture

Interlocutory Application for Injunctions Under S 1324(4) of the Corporations Act 2001 (cth) / Interlocutory Application Determined on 21 June 2024; First and Third Defendants Consented, and the Application Against the Second Defendant Was Determined in His Absence

Legal Issues

  1. 1 ["Whether the Court should determine ASIC's interlocutory application against the second defendant in his absence" "Whether there was a serious question to be tried as to the second defendant's liability for alleged contraventions of ss 727(1), 727(2) and 727(6) of the Corporations Act 2001 (Cth)" 'Whether the balance of convenience favoured interlocutory injunctions restraining offers of securities without compliant disclosure documentation' 'Whether ASIC should be required to give an undertaking as to damages']

Ratio Decidendi

The Court was satisfied that the second defendant had been served with the initiating documents, interlocutory application and supporting affidavit through the solicitor then on the record, and that he had not filed an address for service or appeared. On ASIC's uncontradicted material there was a serious question to be tried as to his liability for the alleged contraventions. The balance of convenience favoured relief because the injunctions restrained conduct already prohibited by the Corporations Act 2001 (Cth), would cause no evident practical inconvenience, and had utility because breach could attract contempt sanctions. ASIC was not required to give an undertaking as to damages...

Court Disposition

Interlocutory injunctions granted; first and third defendants by consent, and second defendant in his absence. Defendants ordered to pay ASIC's costs of and incidental to ASIC's application filed on 10 May 2024.

Orders

  • ['Pursuant to s 1324(4) of the Corporations Act 2001 (Cth), each of the first, second and third defendants is restrained until the hearing and final determination of the proceeding or further order from offering securities in the first defendant, or in any Australian company which purports directly or indirectly to...