Australian Securities and Investments Commission v Daly (Liability Hearing)

The case of Australian Securities and Investments Commission v Daly involved a dispute between the Australian Securities and Investments Commission (ASIC) and the respondents, including Mr Daly, concerning alleged breaches of the Corporations Act 2001 (Cth) by the respondents in relation to their roles as officers of a responsible entity of a registered managed investment scheme. The central issues before the court were whether Mr Daly was an "officer" of the responsible entity for the purposes of the Corporations Act, and whether the officers of the responsible entity breached their duties as outlined in s 601FD(1) of the Act. Additionally, the court had to determine if ASIC's claims against Mr Daly were adequately pleaded and if there was any procedural unfairness occasioned by the respondents not giving evidence.

The court found that ASIC's claims against Mr Daly were adequately disclosed in the pleadings, and there was no procedural unfairness occasioned by the respondents' failure to give evidence. The court applied the rule in Jones v Dunkel, allowing it to draw adverse inferences against the respondents who did not give evidence. Furthermore, the court held that the failure of ASIC to call a particular witness did not warrant discounting the other evidence presented. In terms of the substantive issues, the court found that Mr Daly was indeed an officer of the responsible entity, and that there were breaches of the statutory duties owed by the officers of the responsible entity.

The court concluded that ASIC had established, on the balance of probabilities, that the respondents contravened various sections of the Corporations Act. Specifically, the court found that Mr Daly was an officer of Endeavour from at least 1 April 2015 to 7 August 2018 and that the respondents had contravened sections 601FD(1)(b), (c), (e), (f), and 601FD(3) of the Act. The court reserved costs and directed the parties to confer and propose short minutes setting out timetabling orders for the preparation of the hearing concerning relief.