Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission

This matter concerned an application by Superannuation Warehouse Australia Pty Ltd for an Australian financial services licence (AFSL). The Australian Securities and Investments Commission (ASIC) opposed the grant of the licence, having formed the belief that the applicant was likely to contravene its obligations under section 912A of the *Corporations Act 2001* (Cth) if the licence were granted. The Administrative Appeals Tribunal (AAT) was required to determine whether ASIC's decision to refuse the licence should be affirmed.

The primary legal issue before the Tribunal was whether there was reason to believe that Superannuation Warehouse Australia Pty Ltd was likely to contravene the obligations that would apply under section 912A of the *Corporations Act 2001* if it were granted an AFSL. This involved assessing the conduct and probity of the applicant's sole director and Responsible Manager, Mr Batten, in light of his past involvement with other companies and the contraventions that had occurred within those entities. The Tribunal had to consider the standard of proof applicable in such administrative proceedings and whether the evidence presented by the applicant sufficiently allayed any concerns about future compliance.

The Tribunal, in its reasoning, acknowledged that there is no onus of proof imposed on an applicant in administrative proceedings. However, it held that the applicant must provide sufficient information to enable the Tribunal to be "reasonably comfortable" that it will meet its obligations. The Tribunal found that despite Mr Batten's explanations regarding confusion about his directorships, his failure to resign promptly from Invest Nexus upon learning of Mr Wang's actions, and his willingness to act as a director for individuals not involved in the company's management, created a lack of confidence. Consequently, the Tribunal concluded that it could not be satisfied that there was no reason to believe the applicant was likely to contravene its obligations under section 912A.

The Tribunal affirmed ASIC's decision to refuse the grant of the AFSL.