The Full Federal Court has allowed an appeal by James Mawhinney to overturn a 20-year ban restraining him from advertising investments and raising funds from the public through financial products.
Mr Mawhinney is the director of various companies in the Mayfair 101 Group. On 19 April 2021, the Federal Court granted the restraining order against Mr Mawhinney after finding that he engaged in ‘serious, incompetent and reckless’ conduct (21-076MR). Mr Mawhinney appealed that decision.
The Full Court allowed the appeal on the ground that Mr Mawhinney was denied procedural fairness because ASIC had not sought certain findings of contraventions, but the primary judge made and relied on those findings in making the restraining order. The remaining grounds were dismissed.
The Full Court also ordered that ASIC’s application for injunctions against Mr Mawhinney be remitted to the Federal Court for another hearing, calling the case ‘very exceptional’ and acknowledging that it ‘involves issues concerning the need for protection of the public from potentially serious harm.’
Pending the final determination of the matter, the Full Court reinstated the interim injunctions made in August 2020 restraining Mr Mawhinney, and any company of which he is an officer or shareholder, from:
- Receiving or soliciting funds in connection with any financial product
- Advertising or promoting any financial product, and
- Removing from Australia any assets acquired with funds received in connection with any financial product.
ASIC Deputy Chair Sarah Court said, ‘ASIC took this case to protect the public from the risk of significant financial harm arising from what we believed to be serious misconduct. Mayfair, under Mr Mawhinney’s direction, marketed high-risk products as low risk. Almost 500 people invested in the Mayfair 101 group and they are still owed a total of approximately $211 million. *Mr Mawhinney denied any wrongdoing concerning his direction of the Mayfair 101 Group and the matter has been remitted for a rehearing.
‘ASIC will carefully consider today’s judgment and evaluate our next steps. Meanwhile, as part of today’s decision, the Court has reinstated injunctions we had previously obtained against Mr Mawhinney. These measures will prevent further investor harm while proceedings are ongoing,’ concluded Ms Court.
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Background
The Mayfair 101 Group offered investments in multiple financial products including the M+ and M Core Notes, the IPO Wealth Fund, Australian Property Bonds and IPO Capital. The companies that offered the M Core Notes and the IPO Wealth Fund are in liquidation and redemptions in the remaining products have been suspended since March 2020.
In May 2022, ASIC cancelled the AFS licence of Quattro Capital Group, the former licensee of Mayfair 101’s debenture products.
An appeal by four companies in the Mayfair 101 Group against findings that they engaged in misleading advertising and the imposition of penalties totalling $30 million remains under consideration by the Court.
ASIC has a dedicated webpage for Mayfair 101 Group investors.
ASIC’s Moneysmart website has information on investing, including on debentures, secured notes and unsecured notes.
Editor’s Note:
On 12 October 2022, the media release was amended to note that Mr Mawhinney denied any wrongdoing concerning his direction of the Mayfair 101 Group and the matter has been remitted for a rehearing.
Editor's note 2:
On 12 October 2022, Mr Mawhinney filed an application for special leave to appeal to the High Court of Australia in relation to the Full Federal Court’s decision handed down on 15 September 2022.
Editor's note 3:
On 7 November 2022, the Full Federal Court listed the matter for hearing on costs at 10.15am on 14 December 2022.
Editor's note 4:
On 14 December 2022, the Full Court reserved its decision on costs.
Editor's note 5:
On 22 December 2022, the Full Court delivered its decision on costs: Mawhinney v ASIC (No 2) [2022] FCAFC 205. View the Judgment (PDF 471 KB).
Editor's note 6:
Following a case management hearing on 23 February 2023, Justice O’Callaghan vacated the travel restraint orders against Mr Mawhinney (paragraph 7 of the Orders made by Justice Anderson on 13 August 2020).
Editor's note 7:
On 3 March 2023, the High Court listed the special leave hearing for Friday 21 April 2023, in Canberra.
Editor's note 8:
On 6 March 2023, Justice O’Callaghan published his reasons for vacating the travel restraint orders against Mr Mawhinney (paragraph 7 of the Orders made by Justice Anderson on 13 August 2020). Download the Judgment (PDF 198 KB).
Editor's note 9:
On 21 April 2023, following a hearing in Canberra, the High Court dismissed the special leave application by Mr Mawhinney.
Editor's note 10:
Mr Mawhinney has filed an application to strike out ASIC’s Amended Originating Process filed on 31 March 2023. The application will be heard by the Court on 31 August 2023.
Editor's note 11:
Mr Mawhinney’s application to strike out ASIC’s Amended Originating Process filed on 31 March 2023 was heard by the Court on 31 August 2023. Judgment was reserved.
Editor's note 12:
On 25 October 2023, the Court delivered its judgment in relation to Mr Mawhinney’s application to strike out ASIC’s Amended Originating Process. The Court ordered that ASIC’s amendments be struck out, and that ASIC’s case on remitter be confined to seeking permanent injunctions under section 1101B of the Corporations Act 2001. The Court ordered that ASIC file a further amended Originating Process within 21 days.
Editor's note 13:
The matter is listed for a case management hearing on 7 December 2023 at 9.30am AEDT.
Editor's note 14:
At the case management hearing on 7 December 2023, timetabling directions were made and the matter was listed for trial commencing 21 October 2024 on an estimate of 10 days.
Editor's note 15:
On 2 April 2024, the trial was relisted to commence on 28 October 2024 on an estimate of 10 days.
Editor's note 16:
On 8 April 2024, the Court heard applications by Mr Mawhinney for pre-trial evidentiary rulings and to strike out certain paragraphs of ASIC’s statement of claim. Judgment was reserved.
Editor's note 17:
On 19 April 2024, the Federal Court delivered judgment dismissing Mr Mawhinney’s application to strike out certain paragraphs of ASIC’s statement of claim, and making evidentiary rulings as agreed between the parties. View the Judgment (PDF 279 KB).