Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission

• Jurisdiction: Australia Federal only
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] FCAFC 170
• Date: 10 October 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170

Appeal from:	Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd (No 2) [2021] FCA 247; Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd [2021] FCA 1630
File number:	VID 36 of 2022
Judgment of:	JAGOT, O'BRYAN AND CHEESEMAN JJ
Date of judgment:	10 October 2022
Catchwords:	CORPORATIONS — appeal against findings of misleading and deceptive conduct arising from promotion of investment products — where appellants did not appear at first instance — no error in primary judge’s findings of contraventions or assessment of witnesses — judge’s discretionary assessment of penalty open although higher than penalty suggested by ASIC — broad injunction against publication of material set aside — appeal otherwise dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) ss 2, 7 Australian Securities and Investments Commission Act 2001 (Cth) ss 12BAA(1)(a)–(b), 12BAB(1)(b), 12BAB(7)(b), 12BB(1)–(2), 12DA(1), 12DB(1)(a), 12DB(1)(e), 12GBA, 12GBB, 12GBCA(2), 12GD, 327 Corporations Act 2001 (Cth) ss 553B(1), 708(8), 761G(4), 766C(1)(b), 769C, 1041H(1), 1041H(2)(a) Evidence Act 1995 (Cth) ss 76, 79, 80, 91, 135, 140 Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth) Treasury Laws Amendment (2019 Measures No 3) Act 2020 (Cth) Sch 3 Federal Court Rules 2011 (Cth) rr 30.21(1)(b)(i), 39.05(a), 39.05(e) Explanatory Memorandum, Treasury Laws Amendment (2019 Measures No 3) Bill 2019 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 29.7
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881; (2003) 60 IPR 296 Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274 Australian Competition and Consumer Commission v Pacific National Pty Ltd [2020] FCAFC 77; (2020) 277 FCR 49 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; (2020) 278 FCR 450 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd (No 2) [2018] FCA 1748 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd [1997] FCA 871; (1997) 78 FCR 197 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (No 3) [2021] FCA 170; (2021) 150 ACSR 185 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd [2019] FCA 1932; (2019) 140 ACSR 561 Australian Securities and Investments Commission v Forge [2007] NSWSC 1489 Australian Securities and Investments Commission v Gallop International Group Pty Ltd, in the matter of Gallop International Group Pty Ltd [2019] FCA 1514; (2019) 138 ACSR 395 Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306; (2020) 147 ACSR 266 Australian Securities and Investments Commission v Westpac Banking Corporation [2019] FCA 2147 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 1847; (2005) 224 ALR 467 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893; (2003) 130 FCR 424 House v The King [1936] HCA 40; (1936) 55 CLR 499 ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 707; (1992) 38 FCR 248 In the matter of Anton Fabrications (NSW) Pty Ltd – Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186; (2011) 248 FLR 384 Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159 Polis v Zombor (No 5) [2022] FCA 122 R S Howard & Sons Ltd v Brunton [1916] HCA 21; (1916) 21 CLR 366 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Stephens v The Queen [2022] HCA 31 University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 60 ALR 68 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	283
Date of hearing:	22–26 August 2022
Counsel for the Appellants:	Mr A Myers AC QC, Mr M Pearce SC, Mr A Weinstock, Mr A Aleksov and Mr C P Thompson
Solicitor for the Appellants:	Roberts Gray Lawyers
Counsel for the First Respondent:	Mr T Sullivan QC, Mr D Barnett, Ms S Robb and Mr N Congram
Solicitor for the First Respondent:	Australian Securities and Investments Commission
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDERS

		VID 36 of 2022
BETWEEN:	MAYFAIR WEALTH PARTNERS PTY LTD ACN 168 878 779 First Appellant ; M101 HOLDINGS PTY LTD ACN 629 777 402 Second Appellant ; ONLINE INVESTMENTS PTY LTD ACN 134 785 890 Third Appellant
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent ; M101 NOMINEES PTY LTD (ACN 636 908 159) Second Respondent

order made by:	JAGOT, O'BRYAN AND CHEESEMAN JJ
DATE OF ORDER:	10 OCTOBER 2022

THE COURT ORDERS THAT:

1. The appellants be granted leave to rely on the Amended Notice of Appeal.

2. The injunction made in paragraph 6 of the orders made on 21 January 2022 be set aside.

3. The appeal otherwise be dismissed.

4. The appellants pay the first respondent’s costs of the appeal as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. BACKGROUND TO THE APPEAL

1. These reasons for judgment relate to the second appeal arising from judgments below concerning investment schemes involving a company formerly known as Mayfair Wealth Partners Pty Ltd and now known as Australian Income Solutions Pty Ltd (to be referred to in these reasons by its trading name during the relevant period, Mayfair Platinum), and other companies M101 Holdings Pty Ltd, M101...