JSKN and Australian Securities and Investments Commission

The applicant, a mortgage broker, sought a review of decisions made by the Australian Securities and Investments Commission (ASIC) to permanently ban her from providing financial services and engaging in credit activities. The dispute arose from the applicant's conduct between May 2013 and February 2014, where she facilitated eight mortgage applications by providing false employment letters to Westpac, intending to induce the lender to grant the loans. This conduct constituted a breach of s 160D(2) of the Credit Act.

The court was required to determine whether ASIC had the power to impose a permanent banning order under both the Credit Act and the Corporations Act. Specifically, it needed to consider if the applicant's conduct constituted a contravention of the Credit Act and if there was a likelihood of future contravention, thereby enlivening the powers under s 80 of that Act. Under the Corporations Act, the court had to assess if the applicant had been convicted of fraud, as defined in s 9, and if there was reason to believe she was not of good fame and character, which would trigger the power to issue a permanent ban under s 920A and s 920B.

The court reasoned that the applicant's actions, which involved knowingly providing false employment letters to secure loans, were a clear breach of s 160D(2) of the Credit Act. This conduct, coupled with a conviction for an offence involving dishonesty punishable by imprisonment for at least three months, satisfied the criteria for a banning order under s 80 of the Credit Act. Furthermore, the court found that the applicant had been convicted of "serious fraud" as defined in s 9 of the Corporations Act, thereby enlivening the power to ban her from providing financial services under s 920A(1)(c). The court also considered that the applicant's conviction for dishonesty and the nature of her conduct provided sufficient reason to believe she was not of good fame and character, necessitating a permanent ban under s 920B(2)(b) of the Corporations Act.

Consequently, the court affirmed both of ASIC's decisions. The applicant was permanently banned from engaging in any credit activity pursuant to ss 80 and 81 of the Credit Act, and also permanently banned from providing financial services pursuant to ss 920A and 920B of the Corporations Act.