The Federal Court has ordered Provide Nominees Pty Ltd, trading as Provide Capital, to produce documents that it failed to produce, without reasonable excuse, in response to a notice issued by ASIC.
ASIC sought the documents and subsequently the orders, as part of an ongoing investigation into Provide Capital. (22-343MR)
Provide Capital, an investment company, had failed to provide a reasonable excuse as to its failure to fully comply with the ASIC notice, including by production of some documents with portions redacted.
When handing down his decision, Justice O’Bryan noted that the ‘evidence before the Court demonstrates a history of delay and obfuscation on the part of Provide in complying with the Notice. The most egregious example is the redaction of documents produced to ASIC.’
Justice O’Bryan further noted, ‘There is also a complete failure to explain the nonproduction of client documents that the evidence shows would have existed during the Relevant Period as defined in the Notice. The evidence gives rise to a strong suspicion that Provide has deliberately refrained from searching for, or obtaining from other persons...all documents that are responsive to the Notice.’
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, ASIC can certify non-compliance and seek orders from the Court compelling production in the event the Court is satisfied that there has been non-compliance by the person without reasonable excuse.
Provide Capital must within 28 days produce the documents not otherwise previously produced, including an unredacted copy of each document previously produced in redacted form. Redactions had been made because of assertions by Provide Capital of purported compliance with confidentiality and Privacy Act obligations. The Court noted ‘Any obligation of confidentiality that exists with respect to the specified books must cede to the statutory requirement to comply with a notice issued under s 33’.
ASIC’s investigation into Provide Capital continues.
Download
Editor's note:
On 20 October 2023, Provide Nominees Pty Ltd lodged a Notice of Appeal and Interlocutory Application for orders staying order 1 of the Federal Court of Australia made on 25 September 2023 in ASIC v Provide Nominees Pty Ltd (VID712/2022) pending appeal.