Wynd and Australian Securities and Investments Commission

The Administrative Appeals Tribunal considered an application by ASIC for a banning order against the applicant, Mr Wynd, under section 80 of the National Consumer Credit Protection Act 2009 (NCCP Act). The dispute concerned Mr Wynd's involvement in the business models of WRM and Financial Circle, companies that engaged in financial services and credit activities. ASIC sought to establish that Mr Wynd was involved in contraventions of the NCCP Act and related legislation, and therefore should be banned from engaging in credit activities.

The Tribunal was required to determine whether a banning order under section 80 of the NCCP Act should be made against Mr Wynd, and if so, the appropriate scope and duration of such an order. This involved assessing whether Mr Wynd had been "involved in a contravention" of credit legislation, as defined by section 5 of the NCCP Act, and whether he met the "fit and proper person" test, which requires licensees to act "efficiently, honestly and fairly" under section 47(1)(a) of the NCCP Act. The Tribunal also considered the relevance of previous findings in relation to WRM and Financial Circle, and the applicant's role as a director and responsible manager.

The Tribunal's reasoning centred on the interpretation of "involved in a contravention" and the obligation to act "efficiently, honestly and fairly." Drawing on principles from *ASIC v Camelot Derivatives Pty Ltd*, the Tribunal understood "efficiently, honestly and fairly" to encompass competence, sound ethical values, and adequate performance in compliance with statutory obligations. It noted that "honestly" in this context could include conduct that is morally wrong in a commercial sense, even if not criminal. The Tribunal found that Mr Wynd's responsibilities at Financial Circle, including oversight of lending activities, credit assessment, and compliance sign-off, coupled with his knowledge of the WRM business model, indicated his involvement in contraventions.

The Tribunal ultimately made a banning order against Mr Wynd. The order permanently prohibited him from engaging in credit activities regulated by the NCCP Act. This outcome was based on the Tribunal's findings that Mr Wynd had been involved in contraventions of the NCCP Act and that he was not a fit and proper person to engage in credit activities.