Federal Court of Australia

Australian Securities and Investments Commission v Noumi Limited (No 5) [2025] FCA 1524

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary, the plaintiffs in proceeding S ECI 2020 04505 in the Supreme Court of Victoria (Interveners) be granted leave pursuant to r 2.13(1)(c) of the Federal Court (Corporations) Rules 2000 (Cth) to intervene in the proceeding.

2.    By consent with the applicant and the first defendant, pursuant to s 1317QF(3) of the Corporations Act 2001 (Cth):

(a)    Within 14 days of the date of this order, the pecuniary penalty instalments paid into Court on or around 2 September 2024 and on or around 5 August 2025 in accordance with orders 4(a), 4(b) and 5 of the orders made on 5 August 2024 (August 2024 Orders) and rule 2.42(1)(b) of the Federal Court Rules 2011 (Cth) are to be transferred to the Administrator appointed by order 5 of the orders made on 25 June 2025 (Administrator) in proceeding S ECI 2020 04505 in the Supreme Court of Victoria (Class Action Settlement Orders).

(b)    The pecuniary penalty instalment payable in accordance with order 4(c) of the August 2024 Orders is to be paid to the Administrator.

(c)    The pecuniary penalty transferred or paid to the Administrator (as applicable) in accordance with orders 2(a) and 2(b) above is to be distributed by the Administrator to Eligible Group Members (as defined in the Class Action Settlement Orders) in accordance with the ASIC Penalty SDS approved by order 4 of the Class Action Settlement Orders and revised by further order made on 27 October 2026 in the Supreme Court of Victoria proceeding S ECI 2020 04505.

3.    The Interveners have leave to file in redacted form the Affidavit of Jeremy Alexander Zimet affirmed on 27 November 2025.

4.    Until further order, by consent with the first defendant, pursuant to section 37AF of the Federal Court Act 1976 (Cth), on the grounds that it is necessary to prevent prejudice to the proper administration of justice within the meaning of section 37AG(1) of the Act, each item of information listed in the table of redactions annexed as Schedule A to this Order is to be kept confidential and access to and disclosure of (by publication or otherwise) that information may be provided solely to the following persons, on a confidential basis and solely for the purpose of the Interveners’ application pursuant to s1317QF of the Corporations Act 2001 (Cth):

(a)    with respect to items 1 to 5 and 17 to 23 of Schedule A:

(i)    the Court;

(ii)    the Interveners and their legal representatives;

(iii)    the first defendant and their legal representatives;

(b)    with respect to items 6 to 16 of Schedule A, is restricted to the following persons:

(i)    the Court;

(ii)    the Interveners and their legal representatives;

(iii)    the plaintiff and their legal representatives.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    The plaintiffs in the representative proceeding (Class Action Plaintiffs) which was commenced pursuant to Pt IVA of the Supreme Court Act 1986 (Vic) against Noumi Limited (Noumi) and Deloitte Touche Tohmatsu (Deloitte) in the Supreme Court of Victoria (Class Action), which has now been settled, seek that pursuant to s 1317QF(3) of the Corporations Act 2001 (Cth) (Corporations Act), the pecuniary penalty paid or payable by Noumi into Court in this proceeding (ASIC Proceeding) be made available for distribution to certain eligible group members in the Class Action. Both ASIC and Noumi have consented to the Class Action Plaintiffs’ proposed orders, making the ASIC Penalty Sum available for distribution to those group members.

2    In July 2024, the Class Action Plaintiffs applied to intervene in the ASIC Proceeding, seeking that any pecuniary penalty ordered against Noumi in the proceeding be paid into Court, pending the outcome of the Class Action.

3    The Class Action Plaintiffs’ intervention occurred in the context of there being a substantial overlap between the Class Action, and the ASIC Proceeding. Relevantly, there was an allegation in both proceedings that Noumi had contravened s 674(2) of the Corporations Act, during the period from 29 August 2019 to 25 May 2020 (ASIC Claim Period), although the Class Action Claim Period extended beyond the ASIC Claim Period, and advanced additional allegations against Noumi and Deloitte. In both proceedings, the alleged s 674(2) contraventions by Noumi were based on irregularities in Noumi’s financial accounts, noting that the Class Action included broader allegations of accounting irregularities.

4    On 5 August 2024, I made orders and delivered reasons for judgment in ASIC v Noumi Limited (No 3) [2024] FCA 862 (Noumi (No 3)). I made a declaration sought by ASIC and Noumi as to Noumi’s contraventions of s 674(2), by failing to notify the ASX of certain accounting irregularities referred to as the FY2019 Information, and the HY20 Combined Information (which declarations were made on the basis of admissions made by Noumi in the ASIC Proceeding). I order that Noumi pay the Commonwealth a pecuniary penalty in the amount of $5 million in respect of those contraventions in the following instalments: (a) $2 million within 28 days of the date of the order; (b) $1.5 million within 12 months of the date of the order, and; (c) $1.5 million within 24 months of the date of the order (ASIC Penalty Sum). I also made an order that “subject to further order, including any orders under s 1317QF of the Act, the pecuniary penalty payable [under the orders] is to be paid into Court, pursuant to r 2.42(1)(b) of the Federal Court Rules”.

5    On 8 August 2024, I made a further order as follows:

Pursuant to s 1317QF(3) of the Corporations Act 2001 (Cth) (Act), and subject to further order:

(a)    the whole of the pecuniary penalty payable into Court in accordance with order 3 made on 5 August 2024 is to remain available until 30 June 2028 (or such other date as subsequently ordered by the Court on further application pursuant to order 2 below) as funds in Court for the payment of any compensation order made under s 1317HA of the Act for damage that resulted from the contraventions the subject of the declarations made on 5 August 2024;

(b)    any application by any person to access the funds in Court is to be served on the solicitors for the Plaintiff (ASIC) and the First Defendant (FFG) in these proceedings.

6    Since those orders were made in the ASIC Proceeding, the Class Action has settled for $43 million (Settlement Sum), with Noumi contributing $11,565,000 to the settlement, and Deloitte contributing the balance.

7    On 25 June 2025, Delany J of the Supreme Court of Victoria made orders approving the in-principle settlement (Settlement Approval Orders), and on 27 June 2025, Delany J delivered revised reasons for judgment approving the settlement: Gehrke v Noumi Ltd [2025] VSC 373 (Settlement Judgment).

8    In the context of the settlement, Noumi also entered into a Statement of Agreed Facts for the Class Action Plaintiffs (SOAF). In the SOAF, Noumi made mirror admissions with respect to the FY2019 Information, and the HY20 Combined Information to the admissions it made in the ASIC Proceeding, and Noumi also admitted causation of damage to group members from the admitted contraventions of s 674(2) in the sum of at least $5 million.

9    On the basis of the SOAF, Delany J approved the settlement and made declarations of contraventions by Noumi of s 674(2) by failing to tell the ASX, the FY2019 Information and the HY20 Combined Information (which mirror the declarations made in the ASIC Proceeding), and made a compensation order in the following terms:

An order pursuant to s 1317HA of the Corporations Act that Noumi compensate Eligible Group Members in respect of damage suffered by them as a result of the contraventions of s 674(2) of the Corporations Act referred to in paragraph 9 and 10 above, in the amount of $5 million (in total for all Eligible Group Members), but with payment of such compensation by Noumi to Eligible Group Members to be limited to the amount which Eligible Group Members may receive (if any) by way of distribution of some or all of the pecuniary penalty amount of $5 million to be paid by Noumi in instalments pursuant to the Pecuniary Penalty Orders, pursuant to any Section l3l7QF Application which has or may be made by or on behalf of Eligible Group Members.

10    Eligible Group Members for the purposes of this compensation order are defined as all group members who, during the ASIC Claim Period, acquired an interest in Noumi shares, an interest in American depository receipts that represent Noumi shares, and/or long exposure to Noumi shares by entering into equity swap confirmations in respect of Noumi shares, and who have not validly opted out of the Class Action. They are also referred to in the Class Action as ASIC Period Group Members.

11    Whereas participation in the Settlement Sum is limited to Class Action group members who have registered in accordance with soft class closure orders made in the Class Action, ASIC Period Group Members are not required to have registered in order to have an entitlement under the compensation order made by Delany J.

12    The Class Action Plaintiffs have given undertakings on their own behalf, and on behalf of the ASIC Period Group Members, to the effect that they will not take any step to seek to recover any part of the ASIC Penalty Sum, other than by way of s 1317QF of the Corporations Act: see Settlement Judgment at [220].

13    As addressed by Delany J at [214]-[227] of the Settlement Judgment, the declarations and compensation order made in the Class Action provide a basis for this Court potentially making the ASIC Penalty Sum available to the ASIC Period Group Members.

14    The Class Action Plaintiffs now seek orders pursuant to s 1317QF(3) of the Corporations Act, making the ASIC Penalty Sum available for distribution to the ASIC Period Group Members. As addressed further below, they do so in circumstances where those group members have a separate entitlement to compensation by Noumi, in accordance with the compensation order made by Delany J, and where the registered ASIC Period Group Members’ entitlement from the Settlement Sum, is materially less than their estimated losses flowing from Noumi’s impugned conduct in the Class Action and the ASIC Proceeding.

15    The orders sought by the Class Action Plaintiffs with respect to the ASIC Penalty Sum, contemplate the transfer of payment of the ASIC Penalty Sum instalments to the administrator, appointed by Delany J in the Class Action, for distribution in accordance with the settlement distribution scheme approved (and subsequently slightly revised) in the Class Action (Revised ASIC Penalty SDS). The Revised ASIC Penalty SDS was approved by Delany J alongside the settlement distribution scheme for the Settlement Sum in view of the possibility that the ASIC Penalty Sum would be made available by this Court to the ASIC Period Group Members, and are satisfied that the proposed distribution of the ASIC Penalty Sum is fair and reasonable.

16    Section 1317QF provides as follows:

(1)    This section applies if a court considers that it is appropriate to:

(a)    make a pecuniary penalty order against a person in relation to a contravention of a civil penalty provision; or

(b)    make a relinquishment order against a person in relation to a contravention of a civil penalty provision; or

(c)    impose a fine against a person in relation to a commission of an offence constituted by the same conduct as the conduct constituting the contravention of the pecuniary penalty order.

(2)    In making the pecuniary penalty order or relinquishment order or imposing the fine, the court:

(a)    must consider the effect that making the order or imposing the fine would have on the amount available to pay:

(i)    compensation to which persons might reasonably be expected to be entitled under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE; or

(ii)    refunds to which persons might reasonably be expected to be entitled under section 1317GA or 1317GB; and

(b)    give preference to making an appropriate amount available for refunds and compensation under those sections.

(3)    If the court gives preference to making an appropriate amount available for refunds and compensation under paragraph (2)(b), the court may also make such orders as the court thinks fit for the purpose of ensuring that the amount remains available for the payment of:

(a)    compensation under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE; or

(b)    refunds under section 1317GA or 1317GB.

17    Section 1317QF(2) sets out the mandatory considerations that the Court must relevantly undertake in making the pecuniary penalty order. Section 1317QF(2)(b) requires the Court to give preference to making an appropriate amount available for, relevantly, compensation under s 1317HA of the Corporations Act. The word “must” appears to have been inadvertently omitted from s 1317QF(2)(b). This is a simple grammatical drafting error which, if uncorrected, would defeat the object of the provision: see Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531, at [38] (French CJ, Crennan and Bell JJ). Section 1317QF(2)(b) should thus be construed consistently with s 1317QF(2)(a), so that it also directs the Court in a mandatory manner to require preference to be given to making an appropriate amount available for compensation under, relevantly, s 1317HA.

18    The mandatory considerations in s 1317QF(2) are to be undertaken at the point of making the pecuniary penalty order. Here, in making the orders for the payment by Noumi of the ASIC Penalty Sum, I have already undertaken the mandatory steps required by s 1317QF(2), including giving preference to making an appropriate amount available to Group Members in the Class Action, who might reasonably be expected to be entitled to compensation under s 1317HA, for Noumi’s continuous disclosure contraventions.

19    If the Court gives preference to making an appropriate amount available for compensation orders, the Court has a broad power under s 1317QF(3) to make such orders as the Court thinks fit, for the purpose of ensuring that the amount remains available for the payment of compensation. In Noumi (No 3) at [97], I observed that s 1317QF does not specify any particular way in which preference is to be given to making an appropriate amount available for compensation, which will depend on the particular circumstances of the case.

20    I have already once exercised the power in s 1317QF(3) by making the 8 August 2024 orders, requiring that the ASIC Penalty Sum be paid into Court remain available pending the resolution of the Class Action. The Class Action Plaintiffs now seek that the Court make further orders pursuant to the broad power in s 1317QF(3), to make the ASIC Penalty Sum available to ASIC Period Group Members, in satisfaction of their entitlement to compensation in accordance with the compensation order made by Delany J in the Class Action under s 1317HA of the Corporations Act.

21    The Class Action Plaintiffs submit, and I accept, that there are compelling reasons to make the ASIC Penalty Sum available for distribution to the ASIC Period Group Members, in satisfaction of the compensation order made in the Class Action.

22    First, the admissions of liability and declared contraventions which underpin the compensation order made by Delany J, mirror the admissions made by Noumi, and the declarations made by this Court in the ASIC Proceeding. Those admissions and declarations in each proceeding concern the same contravening conduct by Noumi, being the failure to tell the ASX the FY2019 Information, and the HY20 Combined Information. It follows that the ASIC Period Group Members have an entitlement to compensation pursuant to the compensation order made in the Class Action, arising from the same declared contraventions of s 674(2) of the Corporations Act, as the declared contraventions in respect of which this Court has ordered Noumi to pay the ASIC Penalty Sum.

23    Second, any entitlement to compensation from the ASIC Penalty Sum will be separate from, and additional to the right of all registered Group Members in the Class Action to obtain a share of the Settlement Sum. This much was recognised by Delany J at [217] of the Settlement Judgment. This benefit would accrue to all ASIC Period Group Members, and not just registered Group Members, as Delany J observed in the Settlement Judgment at [218].

24    Third, the Class Action settled for $43 million in the particular circumstances of Noumi’s constrained financial position, and limited capacity to contribute to any settlement, and against the backdrop of much higher overall estimated Group Member losses. As Delany J observed at [57] of the Settlement Judgment, public information relating to the financial position of Noumi published in FY23 and FY24, provided an important context both as to the timing and as to the fact of the settlement. I referred in Noumi (No 3) at [95] to the evidence as to Noumi’s financial position as at December 2023.

25    Further confidential information about Noumi’s financial position was provided by Noumi to the Class Action Plaintiffs as part of the conditions precedent to the settlement, and has been provided on a confidential basis to me.

26    As Delany J observed at [97] of the Settlement Judgment, the Settlement Sum is materially less than the potential estimated collective losses of group members, assuming the proceeding were to succeed on both liability and quantum. Justice Delany further accepted at [98] of the Settlement Judgment that Noumi’s financial issues were a material consideration in favour of the Class Action settlement being approved in the interests of the Class Action Plaintiffs and Group Members. No doubt the pecuniary penalty order in this proceeding was also a factor impacting on Noumi’s constrained capacity to contribute to the settlement sum.

27    Fourth, the registered ASIC Period Group Members are estimated to have suffered losses flowing from Noumi’s impugned conduct, that are materially higher than their entitlement to compensation from the Settlement Sum.

28    The evidence indicates that the aggregate loss estimate for registered ASIC Period Group Members calculated in accordance with the Settlement Sum SDS is about $85 million (noting, however, that this represents loss flowing from broader alleged misconduct than only the conduct in the ASIC Proceedings). The aggregate loss estimate for registered (or otherwise identified) ASIC Period Group Members calculated in accordance with the Revised ASIC Penalty SDS, is about $26 million (which SDS is more narrowly concerned with compensating loss suffered by reason of conduct alleged in both the Class Action, and the ASIC Proceeding).

29    Registered ASIC Period Group Members are entitled to receive only about $12 million in accordance with the Settlement Sum SDS (which SDS is, as noted above, directed to compensating broader alleged misconduct than the Revised ASIC Penalty SDS). The evidence establishes that distributions from the Settlement Sum to registered ASIC Period Group Members fall well short of covering their estimated losses of about $26 million, caused by Noumi’s conduct impugned in the Class Action, and in the proceeding. It should be noted that unregistered ASIC Period Group Members do not have any entitlement to recover from the Settlement Sum.

30    In those circumstances, there is a compelling basis for the ASIC Penalty Sum of $5 million to be made available for distribution to the ASIC Period Group Members, in satisfaction of their entitlement to compensation pursuant to the compensation order made in the Class Action.

31    Fifth, as I have indicated above, I am satisfied that the ASIC Penalty Sum will be distributed to the ASIC Period Group Members in a manner that is fair and reasonable. As noted above, Delany J has in the Class Action approved the Settlement Sum SDS and separately the Revised ASIC Penalty SDS (the latter being approved in light of the foreshadowed s 1317QF application) and the possibility of the ASIC Penalty Sum being made available to ASIC Period Group Members. Justice Delany relevantly made the following observations at [219] of the Settlement Judgment:

While the parties recognise that any entitlement to the ASIC penalty sum is contingent upon the favourable exercise of jurisdiction both by this Court and by the Federal Court, the Settlement Deed includes a proposed ASIC Penalty Settlement Distribution Scheme for the possible distribution of the ASIC penalty sum. The principles for the distribution of that sum pursuant to the ASIC Penalty Settlement Distribution Scheme, should it occur, are the same as the principles that apply in the case of the Settlement Distribution Scheme which I have found to be fair and reasonable as between group members. Mr Zimet is also proposed to be the Settlement Deed Administrator of the ASIC Penalty Settlement Distribution Scheme. The estimated cost of $72,000 of administration of the ASIC Penalty Settlement Distribution Scheme forms part of the $400,000 to administer the Settlement Distribution Scheme to which I have previously referred.

32    As Delany J recognised at [129] of the Settlement Judgment, there were some cost savings due to the proposed combined administration of the Settlement Distribution Scheme, and the ASIC Penalty Settlement Distribution Scheme.

33    The administration costs involved in distributing the ASIC Penalty Sum have been ordered in the Class Action to come out of the Settlement Sum. Accordingly, it is not proposed to deduct any costs from the ASIC Penalty Sum in order to effect the distribution of that sum to the ASIC Period Group Members.

Associate:

Dated:    3 December 2025