ASIC successfully defends Full Federal Court appeal lodged by Provide Capital

The Full Federal Court has dismissed an appeal by Provide Nominees Pty Ltd, trading as Provide Capital.

As part of an ongoing investigation, ASIC previously served a notice on Provide Capital to produce documents which Provide Capital failed to do. Provide must now comply with a notice ASIC issued to produce documents.

Section 33 of the ASIC Act allows ASIC to require the production of documents from a person, including a company. If a person fails to comply with such a request, under s70 of the ASIC Act, ASIC can certify that non-compliance to the Court and seek orders that the person produce documents as required by the notice.

Provide Capital alleged that ASIC failed to include the words ‘without reasonable excuse’ when certifying to the Court that Provide had failed to provide the documents.

ASIC alleged that under s70 of the ASIC Act, it was only required to certify Provide Capital’s failure to produce documents and its action did not extend to certifying that the failure was ‘without reasonable excuse’.

Justices Lee, Anderson and McElwaine determined that the orders previously made by Justice O’Bryan in the Federal Court are correct, dismissing Provide Capital’s appeal and ordering they pay ASIC’s costs.

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