Australian Securities and Investments Commission v PE Capital Funds Management Limited (administrators appointed), in the matter of PE Capital Funds Management Limited (administrators appointed)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 09 February 2022
• Neutral Citation: [2022] FCA 76
• Date: 09 February 2022

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v PE Capital Funds Management Limited (administrators appointed), in the matter of PE Capital Funds Management Limited (administrators appointed) [2022] FCA 76

File number(s):	QUD 147 of 2021
Judgment of:	CHEESEMAN J
Date of judgment:	9 February 2022
Catchwords:	CORPORATIONS – Australian Securities and Investments Commission (ASIC) seeks declarations against the first defendant in relation to contraventions of ss 601ED(5), 911A(1), 911C and 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) – where the first defendant is an investment manager in the business of procuring funds for the purpose of the acquisition and development of land for the potential future operation of businesses on that land – where the first defendant managed, inter alia, four unregistered and five registered investment schemes – where it is alleged the first defendant managed unregistered investment schemes in contravention of; s 601ED(5) – where it is alleged that the first defendant operated a financial services business without an Australian financial services license (AFSL) – where it is alleged that the first defendant held out that it was relevantly authorised under an AFSL in contravention of s 911C(d) of the Corporations Act 2001 (Cth) – where it is alleged that the first defendant engaged in misleading and deceptive conduct by representing that it was an authorised representative of an AFSL holder in contravention of s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the ASIC Act – where it is alleged that the first defendant engaged in misleading and deceptive conduct in relation to the product disclosure statements for certain registered schemes holder in contravention of s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the ASIC Act – where the defendants did not take active steps in the proceedings – where administrators have been appointed to the first defendant – where the second defendant is in liquidation - whether declarations ought to be made – Held: declarations made. ; CORPORATIONS – application by ASIC to wind up the first defendant under s 461(1)(k) of the Corporations Act 2001 (Cth) and to appoint a registered liquidator under s 472(1) of the Act – where administrators appointed – where the administration is not in funds and does not expect to receive a proposal for a deed of company arrangement – where administrators do not oppose winding up orders and the appointment of a registered liquidator – where lack of confidence in the conduct and management of the affairs of the company – where repeated contraventions of the Corporations Act 2001 (Cth) in the context of the financial services business operated by the first defendant – where public interest in protection of investors in the managed investment schemes operated by the first defendant – whether it is just and equitable to make an order winding up the first defendant – Held: application successful. ; CORPORATIONS – application under s 601ND(1) of the Corporations Act 2001 (Cth) by ASIC to wind up certain registered managed investment schemes operated by the first defendant – where the second defendant, the responsible entity in respect of the registered schemes, is in liquidation – where administrators have been appointed to the first defendant, the manager of the schemes – where first defendant will be wound up and a liquidator appointed – whether the circumstances warrant an order being made winding up the schemes – Held: application successful. ; CORPORATIONS – application by ASIC under s 601EE(2) of the Corporations Act 2001 (Cth) to wind up managed investment schemes operated in contravention of s 601ED(5) of the Act – where administrators appointed to the first defendant who operated the schemes – where first defendant will be wound up and a liquidator appointed - whether the circumstances warrant an order being made to wind up the schemes – Held: application successful.
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth), s 12BAA, 12BAB and 12DA Corporations Act 2001 (Cth), ss 19, 20, 319, 440D, 461, 472, 601ED, 601EE, 601ND, 601NF, 911A, 911C, 1012B, 761A, 761E, 761G, 761GA, 763A, 763B, 764A, 766A, 766C, 917A, 1101B, 1012E, 1041H, 1311 and 1317E Federal Court of Australia Act 1976 (Cth), s 21 Corporations Regulations 2001 (Cth), reg 7.1.18(2) Federal Court Rules 2011 (Cth), r 1.32 Federal Court (Corporations) Rules 2000 (Cth), rr 1.3 and 2.4
Cases cited:	ABN Amro Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 Australian Securities and Investments Commission v ABC Fund Managers [2001] VSC 383; (2001) 39 ACSR 443 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (ACN 125 423 574) and Others (No 2) [2013] FCA 234; (2013) 93 ACSR 189 Australian Securities and Investments Commission v Chase Capital Management Pty Ltd [2001] WASC 27; (2001) 36 ACSR 778 Australian Securities and Investments Commission v CME Capital Australia Pty Ltd (No 2) [2016] FCA 544 Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc [2009] QSC 58; (2009) 71 ACSR 1 Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 1644; (2018) 131 ACSR 484 Australian Securities and Investments Commission v Gognos Holdings Ltd [2017] QSC 181; (2017) 123 ACSR 110 Australian Securities and Investments Commission v Infomercial Management Group Pty Ltd [2002] VSC 262 Australian Securities and Investments Commission v Kingsley Brown Properties Pty Ltd [2005] VSC 50 Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781 Australian Securities and Investments Commission v Monarch FX Group Pty Ltd [2014] FCA 1387; (2014) 103 ACSR 453 Australian Securities and Investments Commission v MyWealth Manager Financial Services Pty Ltd (No 3) [2020] FCA 1035 Australian Securities and Investments Commission v Online Investors Advantage Inc [2005] QSC 324; (2004) 194 FLR 449 Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561; [2002] NSWSC 310 Australian Securities and Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120 Australian Securities and Investments Commission v TAL Life Limited (No 2) [2021] FCA 193 Australian Securities and Investments Commission v Young [2003] QSC 29; (2003) 173 FLR 441 Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247; (2004) 139 FCR 215 Federal Commissioner of Taxation v Murry [1998] HCA 42; (1998) 193 CLR...