Australian Prudential Regulation Authority v Siminton - [2006] FCA 140

FEDERAL COURT OF AUSTRALIA
Australian Prudential Regulation Authority v Siminton [2006] FCA 140
BANKING AND FINANCE – interlocutory orders – whether serious question to be tried that respondent carrying on banking business, or using words ‘bank’, banker’ or ‘banking’ in relation to a financial business – whether balance of convenience favours grant of injunction – evidence of attempted flouting of previous order – whether assets should be frozen – whether funds should be available for living expenses and legal fees
Banking Act 1959 (Cth) ss 7, 8, 11, 66
Judiciary Act 1903 (Cth) s 78B
Federal Court Rules O 40 r 8
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON
VID 1607 of 2005
GRAY J
10 JANUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1607 of 2005

BETWEEN:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
APPLICANT

AND:

DAVID ROBERT SIMINTON
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

10 JANUARY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Until the hearing and determination of the proceeding, or further order, the respondent, whether by himself, his servants or agents, be restrained from:

(a) receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside;

(b) assuming or using the words ‘bank’, ‘banker’ or ‘banking’, or any words or phrases of like import, in relation to his, their, or its business;

(c) advertising, representing or stating that he, they or it will carry on banking business;

(d)       selling, transferring, dealing with, disposing of or otherwise encumbering or                    removing from Australia, or causing to be removed from Australia, any money   (including, but not restricted to, cash), property or other assets he has, whether   held alone, jointly, or in conjunction with others (including any accounts or                  property held in the name of the Principality of Camside or the Terra Nova                   Cache);
(e)dealing with, withdrawing or disposing of, or giving any instructions in


relation to the disposition or transfer of, all or part of the moneys standing to      the credit of the respondent or his nominee in any account (whether held            alone, jointly, or in conjunction with any other person, including any accounts      or property in the name of the Principality of Camside or the Terra Nova


Cache and any account in relation to which the respondent is a signatory or       which the respondent otherwise has authority to operate, whether or not the         respondent is named as an account holder and any account which may be


operated for the benefit of the respondent, the Principality of Camside, or the     Terra Nova Cache) in any bank, building society, or other financial institution           and, without limiting the generality of the foregoing, account number


3162 1027 8861, in the name of Principality of Camside, with the


Commonwealth Bank of Australia;

(f)dealing with, withdrawing, disposing of, or giving any instructions in relation to the disposition or transfer of, any assets or moneys transferred to or received by Silverstone Global Investments ACN 109 672 095, or any of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Australian Prudential Regulation Authority v Siminton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FCA 140
Decision Date: 10 JANUARY 2006

CaseChat Overview and Summary

The Australian Prudential Regulation Authority (APRA) filed a case against Siminton, alleging that he had been carrying on unauthorised banking activities through his entities, Terra Nova Cache and the Principality of Camside. The case was heard by the Federal Court of Australia. The primary dispute centred on whether Siminton had been engaged in activities that constituted banking business without the necessary authorisation from APRA, specifically receiving deposits, using banking terminology, and advertising banking services.

The court had to decide whether Siminton's activities with Terra Nova Cache and the Principality of Camside constituted unauthorised banking business under the Banking Act 1959. This involved interpreting the statutory definitions of "banking business" and determining if Siminton's actions fell within those definitions. The court also had to consider whether the entities were operating in a manner that misled the public into believing they were authorised financial institutions.

In its ruling, the court found that Siminton had indeed been carrying on unauthorised banking activities. It was determined that by receiving deposits and using banking terminology, Siminton had engaged in activities that fell within the statutory definition of "banking business." The court emphasised the importance of compliance with authorisation requirements to protect consumers and maintain the integrity of the financial system. As a result, the court issued an interim injunction, prohibiting Siminton from continuing these activities until the matter was fully resolved.

The court's orders included restraining Siminton from receiving deposits, using banking terminology, and advertising banking services, as well as preventing him from disposing of or transferring any assets or moneys associated with his entities. The court also mandated that a specific notice be displayed on any websites controlled by Siminton, clarifying that Terra Nova Cache and the Principality of Camside were not authorised to carry on banking business in Australia.

Orders

Orders of the court

1. Until the hearing and determination of the proceeding, or further order, the respondent, whether by himself, his servants or agents, be restrained from:

(a) receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside;

(b) assuming or using the words ‘bank’, ‘banker’ or ‘banking’, or any words or phrases of like import, in relation to his, their, or its business;

(d) selling, transferring, dealing with, disposing of or otherwise encumbering or removing from Australia, or causing to be removed from Australia, any money (including, but not restricted to, cash), property or other assets he has, whether held alone, jointly, or in conjunction with others (including any accounts or property held in the name of the Principality of Camside or the Terra Nova Cache);

(e) dealing with, withdrawing or disposing of, or giving any instructions in

relation to the disposition or transfer of, all or part of the moneys standing to the credit of the respondent or his nominee in any account (whether held alone, jointly, or in conjunction with any other person, including any accounts or property in the name of the Principality of Camside or the Terra Nova

Cache and any account in relation to which the respondent is a signatory or which the respondent otherwise has authority to operate, whether or not the respondent is named as an account holder and any account which may be

operated for the benefit of the respondent, the Principality of Camside, or the Terra Nova Cache) in any bank, building society, or other financial institution and, without limiting the generality of the foregoing, account number

3162 1027 8861, in the name of Principality of Camside, with the

Commonwealth Bank of Australia;

(f) dealing with, withdrawing, disposing of, or giving any instructions in relation to the disposition or transfer of, any assets or moneys transferred to or received by Silverstone Global Investments ACN 109 672 095, or any of its subsidiaries or associates, from or on behalf of the respondent, the Principality of Camside, the Terra Nova Cache, or any client or purported client of the Terra Nova Cache;

save that, with the consent in writing of the applicant, previously given, the respondent may do any of the things referred to in (d), (e) or (f) in the manner and for the purpose for which the applicant has so consented.

2. The respondent have liberty to apply, on two days’ notice in writing to the applicant,

supported by an affidavit as to his means, for an order that he be permitted to

withdraw moneys for the purposes of paying his own living expenses or paying his legal expenses in relation to the proceeding.

3. Until the hearing and determination of the proceeding, the respondent ensure that there is published on the first page that a user views when he or she accesses:

(a) any current, proposed or future internet site that uses the name ‘Principality of Camside’, ‘Terra Nova Cache’, or any derivation thereof; and

(b) any other internet site controlled by the respondent;

a notice in the form set out in Schedule 1.

4. The notice of motion filed on 29 December 2005 be adjourned to 11.15 am on 30 January 2006, to be heard by the duty judge if the docket judge is unavailable.

5. On or before 23 January 2006, the applicant file and serve on the solicitors for the respondent any further affidavit on which it may seek to rely in support of the notice of motion filed on 29 December 2005.

6. By consent, personal service on the respondent of the notice of motion filed on 29 December 2005, the statement of charge, the affidavits of David John Harley, sworn on 22 December 2005, and Matthew Paul Wylie, sworn on 14 December 2005, 22 December 2005, and 23 December 2005, and any affidavits filed pursuant to paragraph 5 of this order, be dispensed with.

7. On or before 25 January 2006, the respondent file and serve any affidavit on which he may seek to rely in opposition to the notice of motion filed on 29 December 2005.

8. On or before 13 January 2006, the respondent serve any notice raising an issue of a kind referred to in s 78B of the Judiciary Act 1903 (Cth), in accordance with that section.

9. The costs of today be reserved.

Schedule 1

PLEASE TAKE NOTE:

TERRA NOVA CACHE is NOT authorised to carry on banking business in Australia. Amongst other activities which it is not authorised to do, it is not authorised by Australian law to receive moneys on deposit or lend moneys.

THE PRINCIPALITY OF CAMSIDE is NOT authorised to carry on banking business in Australia. Amongst other activities which it is not authorised to do, it is not authorised by Australian law to receive moneys on deposit or lend moneys.

It is an offence under section 7 and section 66 of the Banking Act 1959 for a person to carry on banking business in Australia without authorisation.

It is an offence under section 8 and section 66 of the Banking Act 1959 for a corporation to carry on banking business in Australia without authorisation.

NEITHER TERRA NOVA CACHE NOR THE PRINCIPALITY OF CAMSIDE nor any associated entity has permission under the law of Australia to use the word ‘bank’, ‘banking’ or ‘banker’ in connection with its business.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1607 of 2005

BETWEEN:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY APPLICANT
AND:	DAVID ROBERT SIMINTON RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	10 JANUARY 2006
WHERE MADE:	MELBOURNE