The High Court of Australia has recently granted ASIC special leave to appeal the decision of the Full Federal Court on the operation of S 763B and S 761D of the Corporations Act 2001 (Cth) in relation to the characterisation of a crypto-based digital transaction as a facility for making a financial investment or a derivative. The appeal is in respect of a Full Federal Court decision that found that the crypto-based transaction was neither.
A final hearing date has yet to be allocated but it is expected that the matter will be heard in the first half of 2026. The appeal serves as an important opportunity for the High Court to provide clarity on the definition of a financial product and refine the regulatory landscape for digital assets in Australia, against the backdrop of a fast-moving digital era.
