Australian Securities and Investments Commission v Maxi EFX Global AU Pty Ltd

The Australian Securities and Investments Commission (ASIC) brought an action against Maxi EFX Global AU Pty Ltd (EuropeFX) alleging that EuropeFX had failed to comply with a notice to produce documents under section 33 of the Australian Securities and Investments Commission Act 2001 (Cth). ASIC sought an order under section 70(3) of the ASIC Act requiring EuropeFX to comply with the notice and to pay costs. The primary issues for determination were whether the notice was invalid, whether the term "possession" in the context of section 33(1) of the ASIC Act includes custody or control, whether EuropeFX had possession, custody or control of books held by third parties, whether EuropeFX had a reasonable excuse for non-compliance, and whether the court should decline to exercise its discretion to order compliance.

The court found that the notice was valid and not unreasonably broad. It held that the term "possession" for the purposes of section 33 of the ASIC Act includes custody or control, and that EuropeFX had possession, custody or control of the books held by third parties. The court further found that EuropeFX did not have a reasonable excuse for not producing the required documents, and that the court should exercise its discretion to order compliance. The court held that EuropeFX should be given 28 days from the date of the order to comply with the notice and that EuropeFX should pay ASIC’s costs of the application.

The court ordered that EuropeFX comply with the notice by producing the books pursuant to paragraphs 4, 5, 6, 8, 12 and 19 of the Notice within 28 days and that EuropeFX pay ASIC’s costs of the application.