Liquidators and Administrators May Start to Feel ASIC’s “Why Not Litigate?” Approach Bite

    View Authors May 2019

    It has been widely reported that, post Banking Royal Commission, the Australian Securities Investigation Commission (ASIC) will take a “why not litigate?” approach. As we foreshadowed in an article last month, this scrutiny will not be confined to the banking sector but is likely to extend to anyone subject to ASIC oversight.

    While we achieved an emphatic vindication of our client in the recent ASIC v Wily matter, the fact remains that all external administrators will face more frequent and more intense surveillance by the regulator and may, ultimately, become subject to court proceedings. Importantly, as highlighted in the case against Mr. Wily, ASIC’s own investigative, inquiry and examination powers are extensive and may be triggered by the regulator without court sanctioning. Further, any investigations or legal action taken by ASIC may not only arise from external administrator reporting obligations owed to ASIC (among others), but also from complaints made by stakeholders. Finally, while the regulator ultimately failed in its case against Mr. Wily, it may be buoyed by the court’s judgment and reference to ASIC’s extensive powers and how they may be exercised independent of the court.

    If you require assistance in responding to a notice or an enquiry by ASIC (or another regulator), we have an expert team available to help.