Australian Securities and Investments Commission v Fuelbanc Australia Limited [2007] FCA 960

Australian Securities and Investments Commission v Fuelbanc Australia Limited [2007] FCA 960

The FUELbanc scheme constituted a managed investment scheme under s 9 of the Corporations Act 2001 (Cth), required registration under s 601ED(1)(a), and was not registered. The defendants operated and managed the scheme and carried on a financial services business without a licence, contrary to s 601ED(5) and s 911A. The body corporate exclusion did not apply. It was appropriate to make the declarations and grant the injunctions and winding up orders sought, notwithstanding the possibility of future criminal proceedings.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Fuelbanc Australia Limited; Second Defendant: PayCards Global Pty Ltd; Third Defendant: Paycards Investments Pty Ltd; Fourth Defendant: PC Property Group Pty Ltd; Fifth Defendant: Stephen John McDougall; Sixth Defendant: Timothy Ross McDougall; Seventh Defendant: Matthew Alan McDougall
Jurisdiction
Australia
Judgment Date
29 June 2007
Procedural Posture
Civil / Final Judgment and Orders
Outcome
Declarations made; permanent injunctions granted; winding up orders made; costs awarded; proceedings otherwise dismissed.
Legal Topics
Managed Investment Schemes, Unregistered Schemes, Financial Services Licensing, Declaratory Relief, Winding Up, Injunctions
Corporations Law Financial Services Law Managed Investment Schemes Unregistered Schemes Financial Services Licensing Declaratory Relief Winding Up Injunctions

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Parties

Australian Securities and Investments Commission

Plaintiff

Fuelbanc Australia Limited

First Defendant

PayCards Global Pty Ltd

Second Defendant

Paycards Investments Pty Ltd

Third Defendant

PC Property Group Pty Ltd

Fourth Defendant

Stephen John McDougall

Fifth Defendant

Timothy Ross McDougall

Sixth Defendant

Matthew Alan McDougall

Seventh Defendant

Procedural Posture

Civil / Final Judgment and Orders

Legal Issues

  1. 1 Whether the FUELbanc scheme is a managed investment scheme under the Corporations Act 2001 (Cth)
  2. 2 Whether defendants operated an unregistered managed investment scheme in contravention of s 601ED(5)
  3. 3 Whether the defendants carried on a financial services business without an Australian financial services licence, contrary to s 911A

Ratio Decidendi

The FUELbanc scheme constituted a managed investment scheme under s 9 of the Corporations Act 2001 (Cth), required registration under s 601ED(1)(a), and was not registered. The defendants operated and managed the scheme and carried on a financial services business without a licence, contrary to s 601ED(5) and s 911A. The body corporate exclusion did not apply. It was appropriate to make the declarations and grant the injunctions and winding up orders sought, notwithstanding the possibility of future criminal proceedings.

Court Disposition

Declarations made; permanent injunctions granted; winding up orders made; costs awarded; proceedings otherwise dismissed.

Orders

  • First to fifth defendants contravened s 601ED(5) by operating an unregistered managed investment scheme.
  • First to fifth defendants contravened s 911A by carrying on a financial services business without a licence.