Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd

In the Federal Court of Australia, the Australian Securities and Investments Commission (ASIC) brought proceedings against Mauer-Swisse Securities Ltd seeking interim injunctions. ASIC alleged that the company had engaged in deceptive and misleading conduct in relation to financial products and services, contravening the Corporations Act 2001 (Cth). The dispute centred on whether the Court should grant the injunctions on the basis of the likelihood of success on the merits and the balance of convenience, or solely on the existence of a serious question to be tried.

The court had to determine which approach to apply in assessing the grant of interim injunctions in cases involving ASIC's enforcement actions. The Court examined the relevant authorities, including ASIC v Sweeney, ASIC v Parkes, ASIC v Pegasus Leveraged Options Group Pty Ltd, ASIC v Cooke, Liquorland (Aust) Pty Ltd v Anghie, and Westgold Resources NL v Precious Metals Australia Ltd. The Court concluded that the correct approach required consideration of both whether a serious question to be tried exists and where the balance of convenience lies. This approach was consistent with ASIC v Sweeney, ASIC v Parkes, and ASIC v Pegasus Leveraged Options Group Pty Ltd, and rejected the narrower approach in ASIC v Cooke, Liquorland (Aust) Pty Ltd v Anghie, and Westgold Resources NL v Precious Metals Australia Ltd.

After applying the appropriate legal principles, the Court found that a serious question to be tried was indeed present, and the balance of convenience favoured ASIC. Consequently, the Court granted the interim injunctions sought by ASIC. The orders required Mauer-Swisse Securities Ltd to cease the alleged misleading and deceptive conduct and to refrain from engaging in similar activities in the future.