Grubisa and Australian Securities and Investments Commission

This matter concerned an application by Ms Grubisa to review decisions made by the Australian Securities and Investments Commission (ASIC) to ban her from providing financial services and engaging in credit activities. ASIC sought to ban Ms Grubisa on the basis that she had held herself out as holding an Australian Financial Services Licence (AFSL) and an Australian Credit Licence (ACL) when she did not possess them, and that there was a likelihood she would contravene financial services and credit laws in the future.

The court was required to determine whether Ms Grubisa had contravened the prohibition on "holding out" under section 911C of the *Corporations Act 2001* (Cth) and the equivalent provision under the *National Consumer Credit Protection Act 2009* (Cth). Furthermore, the court had to consider whether ASIC had reason to believe Ms Grubisa was likely to contravene financial services or credit laws in the future, as required by section 920A(1)(f) of the *Corporations Act* and section 80(1)(e) of the *National Consumer Credit Protection Act*.

The court found that Ms Grubisa had made incorrect representations about holding the relevant licences, and that the intention behind these representations was irrelevant; the focus was on what was said and how it was understood. However, the court determined that while Ms Grubisa had engaged in problematic behaviour, a banning order would not further a legitimate regulatory interest under the *Corporations Act* or the *National Consumer Credit Protection Act*. The court reasoned that the issues presented by Ms Grubisa were matters for other decision-makers and did not warrant a ban under the specific legislative provisions before it.

Consequently, the court set aside ASIC's decisions and ordered in substitution that Ms Grubisa should not be banned from providing financial services or engaging in credit activities under either section 920A of the *Corporations Act* or section 80 of the *National Consumer Credit Protection Act*.