Australian Securities and Investments Commission v Forex Capital Trading Pty Limited, in the matter of Forex Capital Trading Pty Limited

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 29 April 2021
• Neutral Citation: [2021] FCA 570
• Date: 29 April 2021

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Forex Capital Trading Pty Limited, in the matter of Forex Capital Trading Pty Limited [2021] FCA 570

File number:	VID 462 of 2020
Judgment of:	MIDDLETON J
Date of judgment:	29 April 2021
Date of publication of reasons:	28 May 2021
Catchwords:	CORPORATIONS – admitted contraventions of civil penalty provisions – offer of derivative products – contracts for difference – margin foreign exchange contracts – offering to retail investors in Australia – financial product advice – financial services – where parties jointly proposed agreed relief comprising declarations of contravention, pecuniary penalties and disqualification orders – whether relief sought is appropriate in all the circumstances
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Crimes Act 1914 (Cth) Crimes Amendment (Penalty Unit) Act 2017 (Cth) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth) Treasury Laws Amendment (2019 Measures No. 3) Act 2020 (Cth)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) 188 FCR 238 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018 Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40 Australian Securities and Investments Commission v Adler [2002] NSWSC 483; 42 ACSR 80 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 3) (2020) 275 FCR 57 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 4) [2020] FCA 1299 Australian Securities and Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69; 377 ALR 55 Australian Securities and Investments Commission v Camelot Derivatives Pty Ltd (in liq) [2012] FCA 414 Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023 Australian Securities and Investments Commission v Flugge and Geary [2016] VSC 779; 342 ALR 1 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 Australian Securities and Investments Commission v Oxford Investments (Tasmania) Pty Ltd (2008) 169 FCR 522 Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 3) [2015] NSWSC 1527 Australian Securities and Investments Commission v Westpac Banking Corporation [2019] FCA 2147 Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170 BlueScope Steel Limited v The Australian Worker’s Union [2019] FCA 182 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Cassimatis v Australian Securities and Investments Commission (2020) 275 FCR 533 Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v Westpac Banking Corporation [2020] FCA 1538; 148 ACSR 247 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Gillfillan v Australian Securities and Investments Commission [2012] NSWCA 370; ACSR 460 Markarian v The Queen (2005) 228 CLR 357 Pearce v The Queen (1998) 194 CLR 610 Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27; 97 ACSR 412 Re Hres and Australian Securities and Investments Commission (2008) 105 ALD 124 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2020] FCAFC 20; (2012) 287 ALR 249 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631 Wong v The Queen (2001) 207 CLR 584 Yorke v Lucas (1985) 158 CLR 661
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	163
Date of hearing:	29 April 2021
Counsel for the Plaintiff:	Mr C Horan QC with Ms Z Maud and Ms S Hogan
Solicitor for the Plaintiff:	Norton Rose Fulbright
Counsel for the First Defendant:	Mr C Archibald QC with Ms K O’Gorman and Ms V Bell
Solicitor for the First Defendant:	Ashurst
Counsel for the Second Defendant:	Mr G Rich SC with Mr P English
Solicitor for the Second Defendant:	Clifford Chance

ORDERS

		VID 462 of 2020
IN THE MATTER OF FOREX CAPITAL TRADING PTY LIMITED (ACN 119 086 270)
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	FOREX CAPITAL TRADING PTY LIMITED (ACN 119 086 270) First Defendant ; SHLOMO YOSHAI Second Defendant

order made by:	MIDDLETON J
DATE OF ORDER:	29 April 2021

BY CONSENT, THE COURT DECLARES THAT:

AGAINST THE FIRST DEFENDANT:

Contraventions of s 961K(2) of the Corporations Act

1. The First Defendant contravened s 961K(2) of the Corporations Act 2001 (Cth) (the Corporations Act) in 595 instances by reason of its representatives, other than an authorised representative, having contravened s 961B(1) of the Corporations Act by failing to act in the best interests of a client (who is identified in Annexure A, relevantly to each contravention, as Investor 1, Investor 2, Investor 3, Investor 4, Investor 5, Investor 6, Investor 7 or Investor 8) when providing personal advice to the relevant client on each of the dates identified in Annexure A.

2...