Global Financial Markets Pty Ltd and Australian Securities and Investments Commission

This matter concerned an application by Global Financial Markets Pty Ltd (GFM) for an Australian Financial Services Licence (AFS licence), and a review of decisions by the Australian Securities and Investments Commission (ASIC) to cancel the AFS licences of Mark Power and his company, MPF. The dispute arose from ASIC's refusal to grant GFM a licence and its prior cancellation of MPF's licence, primarily due to alleged failures by Mark Power, the sole director and shareholder of MPF and the nominated responsible manager for GFM, to ensure compliance with financial services laws.

The court was required to determine whether ASIC had acted correctly in refusing to grant GFM an AFS licence and in cancelling the licences of MPF. Specifically, the court had to consider whether there was reason to believe that GFM, through its nominated responsible manager Mark Power, was likely to contravene its obligations under section 912A of the Corporations Act 2001 (Cth). This involved assessing whether Mark Power possessed the necessary competence and had demonstrated adequate experience to provide the financial services for which GFM sought a licence and to properly monitor ongoing compliance.

The court affirmed ASIC's decisions, finding that the concerns previously identified in the cancellation of MPF's licence were relevant to the licence refusal for GFM. The court was not satisfied that Mark Power had demonstrated a material change in his understanding of his duties or acquired the requisite skills and experience since the cancellation of previous licences. ASIC's refusal was based on the assessment that Mark Power lacked the necessary competence to provide the proposed financial services and to monitor compliance, and that GFM had not demonstrated its ability to meet the organisational competence and compliance obligations under section 912A. The court also considered the temporal aspect of the review, determining that for the licence cancellation decisions, the facts should be considered as at the date of cancellation, while for the licence refusal, all facts available up to the time of the court's decision were relevant.