In the Media

ASIC commences consultation on proposed guidance on crowd-sourced funding

Last week, ASIC released two consultation papers proposing guidance for public companies and intermediaries (i.e. crowd funding platform operators) to assist them in using the new crowd-sourced funding (CSF) regime commencing on 29 September 2017.

Under the CSF regime, eligible public companies will be able to make offers of ordinary shares to a large number of investors, via an online platform of an Australian financial services licenced intermediary.

Phishing scams imitating Australian Taxation Office and Centrelink, warns Australian Competition and Consumer Commission

The ACCC is warning people to stay alert to ‘phishing’ scammers pretending to be from well-known businesses and government departments, such as the Australian Tax Office and Centrelink, trying to con unsuspecting victims out of their personal information and money.

People concerned about phishing scams should visit www.scamwatch.gov.au

 For the full article, please see https://www.accc.gov.au/media-release/dont-fall-for-a-scammers-phishing-bait

 Decision on application of Criminal Code in civil proceedings under Corporations Act

The Full Federal Court has held that it is not necessary for ASIC to prove fault according to Chapter 2 of the Criminal Code in civil proceedings relating to certain breaches of the Corporations Act.

In the matter of ASIC v Whitebox Trading Pty Limited & Anor (NSD383/2016) (Whitebox), ASIC asked the Federal Court to clarify the law following its decision in Gore v ASIC [2017] FCAFC 13 (Gore) in February.  In Gore, the Court considered that ASIC had to prove Criminal Code fault elements to obtain civil remedies in relation to breaching the Corporations Act by offering securities without a current prospectus.

The Full Federal Court agreed with ASIC’s submissions in Whitebox and ruled “Chapter 2 of the Criminal Code is not engaged in, and does not apply to, proceedings brought for a contravention of a civil provision, including a civil penalty provision…”

For the full media release, please see http://asic.gov.au/about-asic/media-centre/find-a-media-release/2017-releases/17-192mr-decision-on-application-of-criminal-code-in-civil-proceedings-under-corporations-act/

In Practice and Courts

ASIC: Regulatory Guide 260 Communicating findings from audit files to directors, audit committees or senior managers

The new regulatory guide is for audit firms as well as the directors, audit committees and senior managers of companies, responsible entities or disclosing entities. The regulatory guide explains when we will communicate financial reporting and audit quality findings identified from our reviews of audit files to directors, audit committees or senior managers; the process we will follow before communicating findings and when we will inform directors of our routine audit file reviews.

The guide can be viewed at http://download.asic.gov.au/media/4299762/rg260-published-23-june-2017.pdf

Cases

Atarashii Stone Pty Ltd v Granite Transformations Pty Ltd (No 2) [2017] ACTSC 139

 Facts

• The proceedings involve Atarashii, a franchisee, and Granite, a franchisor involved in the provision of a composite stone product which is used to create bench tops within houses.
• On 1 May 2017, Granite purported to terminate its franchise agreement with Atarashii on the basis that Atarashii had breached the agreement.
• Subsequently, Atarashii sought a declaration that the termination was void and an interlocutory injunction to restrain Granite from relying upon or implementing the termination of the franchise agreement.
• An interim injunction was granted, during which time Atarashii needed to provide evidence that:
• it was operating the franchise business in a satisfactory manner; and
• the continuation of the interlocutory injunction would not require a degree of supervision by the Court.

Decision

• Justice Mossop granted the continuation of the interlocutory injunction, finding that:
• the Court was not satisfied allegations of ongoing breach warranted injunction not being continued;
• the franchise business was being conducted in a suitable manner and there had not been any allegation that Atarashii failed to order at least the minimum quantities of stone from Granite;
• the continuation of the injunction would not require ongoing supervision of the Court; and
• the balance of convenience favoured Atarashii.
• The matter is listed for hearing on 5 September 2017.

 For the full decision please see http://www.austlii.edu.au/au/cases/act/ACTSC/2017/139.html