Frugtniet and Australian Securities and Investments Commission

This matter concerned an application by Mr Frugtniet for review of a banning order made by the Australian Securities and Investments Commission (ASIC) under the *National Consumer Credit Protection Act 2009* (Cth). The dispute centred on whether ASIC had reason to believe, and whether the Tribunal was satisfied, that Mr Frugtniet was not a fit and proper person to engage in credit activities. The proceedings had a complex history, including a remittal from the High Court to the Administrative Appeals Tribunal (AAT).

The Tribunal was required to determine two primary legal issues. Firstly, it had to ascertain which legislative provisions applied to the review, given that amendments to the *National Consumer Credit Protection Act 2009* had been enacted after ASIC's decision but before the Tribunal's review. Secondly, the Tribunal had to determine whether Mr Frugtniet was a fit and proper person to engage in credit activities, considering evidence of his past conduct.

The Tribunal reasoned that despite amendments to the *National Consumer Credit Protection Act 2009* expanding ASIC's powers to issue banning orders, the core question remained whether the applicant was a fit and proper person. The Tribunal found that Mr Frugtniet had given false evidence on multiple occasions, including to the Victorian Civil and Administrative Tribunal (VCAT), to the AAT itself in previous proceedings, and to the Mortgage and Finance Association of Australia (MFAA) in relation to his re-registration application. Based on these findings of dishonesty, the Tribunal concluded that Mr Frugtniet was not a fit and proper person to engage in credit activities.

Consequently, the Tribunal was satisfied that there was reason to believe, and indeed was positively satisfied, that Mr Frugtniet was not a fit and proper person to engage in credit activities. Given the applicant's long track record of dishonesty and willingness to lie when it suited his interests, the Tribunal determined that the disqualification must be permanent.