Federal Court of Australia

Bano Pty Ltd v Australian Settlements Limited [2026] FCA 932

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The prospective applicant pay the costs of the prospective respondent, as agreed or taxed.

3.    For the avoidance of doubt, order 2 made on 13 July 2026 be vacated.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1    The prospective applicant (Bano) and the prospective respondent (BCAU) are parties to a Master Services Agreement and System User Contract (contract). Pursuant to the contract, BCAU supplies to Bano “Services” described as “Settlement and Processing Services” (cl 7) in return for the payment of fees (cl 8).

2    Bano seeks urgent relief in the form of an order pursuant to r 7.01 of the Federal Court Rules 2011 (Cth) restraining BCAU from giving effect to: (1) a purported notice of suspension issued on 10 June 2026 under cl 15.3 of the contract; and (2) a further purported notice of suspension issued on 3 July 2026 under cl 15.4 of the contract. I will refer to these notices as the June notice and the July notice respectively.

3    In support of that application, Bano relies upon affidavits made by Mr James Woodward, its chief executive officer, on 23 June 2026 and 9 July 2026. BCAU relies upon an affidavit made by Mr Patrick Green, the Chief Compliance Officer of the Banking Circle Group, on 3 July 2026. Mr Green is employed by Banking Circle S.A., an entity incorporated in Luxembourg and which is the parent company of BCAU.

4    For the reasons set out below, the application must be dismissed.

B.    Background

5    Before addressing whether there is a prima facie case and where the balance of convenience lies, it is helpful first to set out some of the salient background.

B.1    The contract

6    For the purposes of the contract the references to “we”, “us” and “our” are references to BCAU (cl 7.1) and references to “you” and “your” are references to Bano (cl 7.3).

7    Clause 15 is titled “Service Suspension”. Relevantly, cll 15.3 and 15.4 provide:

15.3     We also reserve the right to suspend the operation of a Settlement and Processing Service at any time without notice if we reasonably believe that suspending the service immediately is necessary to protect our interests and/or those of users of that Service.

15.4    We may suspend your access to a Settlement and Processing Service without notice if we believe on reasonable grounds that you have materially breached any of your obligations under this System User Contract.

8    Clause 17 is titled “Term and Termination”. Relevantly, cll 17.1, 17.4 and 17.6 provide:

17.1    This System User Contract commences on the date of its execution by both parties (Commencement Date) and continues for an initial term of 3 (three) years (the Initial Term) until terminated in accordance with this clause, or until you no longer subscribe to any Services, whichever occurs first (Termination Date). The term of this System User Contract will automatically be extended after the expiration of the Initial Term for a further 1 (one) year (Renewal Term) if we or you do not receive written notice of termination at least 3 (three) months prior to the end of the Initial Term or each Renewal Term.

17.4     Either party may terminate a Settlement and Processing Service or this System User Contract immediately by written notice to the other party if:

(a)    the other party defaults and/or breaches an obligation under this System User Contract in a material respect and, if the default and/or breach is capable of being remedied, it has not been remedied the default and/or breach within 5 Business Days of being given a written notice by the other party setting out details of the default and/or breach;

…

17.6    We may terminate this System User Contract by providing 90 (ninety) days’ written notice if your access to Services has been suspended for a continuous period of at least 3 (three) months in accordance with clause 15.

(bold emphasis in original)

9    Clause 31 is titled “AML/CTF Compliance”. Clause 31.5 provides:

Bano must ensure that customer applications are validated and approved prior to establishing an account with AML/CTF obligations. This includes KYC or KYB verification and PEP and Sanctions Screening. Any Bano customers who are trading Crypto, Gaming or Gambling must be disclosed to [BCAU] and no transactions associated with those customers may be processed through [BCAU] unless permission has been granted by us in writing. Failure to obtain this approval will be a material breach of this agreement.

10    Relatedly, cl 44.7 of the contract provides:

AML/CTF Laws means all obligations and requirements arising from the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) … and all associated regulations, instruments, guidance notes and determinations as amended from time to time

(bold and italic emphasis in original)

11    Clause 81 is titled “Suspension and termination” and provides:

81.1    We may suspend your ability to make Osko Payments or other NPP Payments at any time where we believe on reasonable grounds that it is necessary to do so to prevent loss to us or you, including where we suspect that the service is being used or will be used in a fraudulent manner.

…

B.2    Consultation, the notices and the commencement of this proceeding

12    BCAU is subject to the operation of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) (AML/CTF Act). Set out below is a summary, from BCAU’s written submissions, of BCAU’s business and its regulatory obligations, which I did not take to be in contest on this application:

3.    Banking Circle provides its customers (and its customers’ clients) with access to Australian payment clearing systems, or “payment rails”. The two primary payment rails in Australia are the New Payments Platform (NPP) and the Bulk Electronic Clearing System (BECS). Pursuant to the System User Contract, Banking Circle provides Bano access to the NPP and the BECS, through which Bano processes the payments of its own underlying clients.

4.    Banking Circle operates in a heavily regulated environment. Among other things, as a “reporting entity” under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act), it is obliged to identify and assess the risks of money laundering and terrorism financing (ML/TF risks) and update that risk assessment where appropriate; develop and maintain AML/CTF policies, procedures, systems and controls which appropriately manage and mitigate the ML/TF risks and comply with those policies; undertake ongoing customer due diligence; and apply enhanced due diligence measures to customers where appropriate.

5.    Some of those obligations attract civil penalties (ss 26G and 30(1)). Where the CEO of AUSTRAC (the AML/CTF regulator) has reasonable grounds to suspect either that a reporting entity has not taken appropriate action to identify, assess, manage or mitigate ML/TF risks, or suspects a contravention of the AML/CTF Act or its associated rules, he or she may compel the reporting entity to appoint an external auditor.

6.    Banking Circle is also regulated by APRA and has prudential obligations imposed by the Banking Act 1959 (Cth) and the Financial Accountability Regime Act 2023 (Cth) and associated regulations and rules.

7.    Further, as one of the 15 direct participants in the NPP, Banking Circle is bound by the NPP Product Rules and the AP+ Scheme Rules. They provide that Banking Circle is responsible as principal for payments it makes on behalf of “Identified Institutions” (such as Bano), must satisfy itself that any “Identified Institution” to which it provides access to the NPP has a framework in place for ensuring compliance with all AML/CTF regulatory requirements in Australia, and must ensure that its use and its customers’ use of the NPP does not adversely affect the integrity of the NPP scheme. Banking Circle’s access to the NPP may be suspended or terminated for failure to comply.

(bold, italic and underline emphasis in original)

13    Mr Green provided the following evidence ([14] to [31]) as to BCAU’s concerns with respect to Bano.

14    In 2024, Bano approached Banking Circle S.A., requesting to be on­boarded as a client. Banking Circle S.A. then conducted a comprehensive review of Bano’s AML/CTF compliance capabilities and concluded that it fell well short of what would be required to provide Banking Circle S.A. comfort that Bano would comply with its AML/CTF obligations. A “Client Approval Report” was prepared which recommended against the on-boarding of Bano. The report’s conclusion was expressed in the following terms:

Bano’s current client base consists of both individuals largely based in Australia and offshore SME corporates. They also have a number of corporate clients who are utilising their backend tech platform to support their underlying clients. Whilst it is important to recognise that the business is still relatively young and they are still developing the services they offer and the systems and controls in place, multiple major concerns have been identified with regards to the AML framework.

The concerns held cover most aspects of the framework including policies and procedures as well as systems and controls however, almost all of them can be related back to the experience in the team and their knowledge of the customer base. Specific concerns include:

•    The lack of an EWRA [enterprise-wide risk assessment]

•    The lack of sophistication in the CRA [customer risk assessment]

•    The experience and qualifications across the first and second line AML Compliance teams and knowledge of the customer base and the risks associated

•    The level of CDD [customer due diligence] and EDD [enhanced due diligence] completed at onboarding and during ongoing monitoring

•    The lack of sophistication in the TM [transaction monitoring] tool and process

•    The lack of policies and procedure documents and the quality of the existing documents

In light of the above it is the recommendation that the client be rejected for onboarding approval by the OCM [Onboarding Committee Meeting].

15    In about March 2025, Banking Circle S.A. refused Bano as a client on the basis that it posed an unacceptable regulatory and reputational risk. Mr Green was a member of the Onboarding Committee which made that decision.

16    On 1 August 2025, the Banking Circle Group, through Banking Circle S.A., acquired the shares in BCAU.

17    Following the acquisition of BCAU, the Banking Circle Group wished to ensure that BCAU’s clients did not pose an unacceptable regulatory and reputational risk to BCAU.

18    To that end, in early 2026, BCAU conducted an AML/CTF review of BCAU’s clients.

19    The first step in that process was to identify which of those clients appeared to pose the highest AML/CTF risk, so that those clients could be reviewed first.

20    Bano was one of the first of BCAU’s clients to be reviewed for financial crime risk.

21    In late January and early February 2026, BCAU undertook a “transaction review”. This involved a detailed review of the data from October 2025 to January 2026 which BCAU had on file concerning payments processed by BCAU on behalf of Bano. The transaction review was undertaken by Ms Jenny Watt, (Head of Client Due Diligence, Banking Circle S.A. (United Kingdom Branch)).

22    On 4 February 2026, Ms Watt sent an email to other BCAU personnel outlining her “general findings” as a result of the transaction review. That email included:

General Findings:

•    Payment information is missing in a lot of instances which make a full analysis difficult. In particular, originator and beneficiary addresses and BICS. For incoming payments BICs are missing for circa 4%.

…

•    The missing address details for Bano’s client base is problematic as we can’t assess where their client base is located (which cannot be assumed to be Australia). On debit side number of Bano clients identified as being outside of AU (Canada, China, HK, NZ, Singapore, US and BVI)

…

•    If the sending BICs are correct, I cannot see that payments are originating from FIs outside of AU. However, there are 31 identifiable payments originating from counterparties who reside outside of Aus; however, appear to have accounts with Flash Partners, Wise Aus and Commonwealth Bank of Australia

•    Top transacting clients by volume/value appear to mainly be FIs and VASPs and we are supporting “third party nested” flow (i.e., we are not only supporting operational flow for that FINASPs own operational purposes)

23    Ms Watt kept Mr Green up to date on the progress of her review. Mr Green was (and remains) concerned by Ms Watt’s findings because:

(1)    without addresses for the makers and recipients of payments being available, BCAU cannot undertake meaningful transaction monitoring with respect to those payments and thus be comfortable that the payments do not contravene AML/CTF laws. The effect of addresses being missing for about four per cent of payments processed by Bano would be that BCAU would have to rely entirely on Bano’s transaction monitoring capabilities with respect to those payments. Those payments would also attract a higher compliance burden as BCAU would be unable to comfortably conclude that they were, for example, domestic payments;

(2)    the ability of counterparties to those transactions (i.e. the receiving or beneficiary bank) to effectively monitor transactions would also be compromised with those details missing;

(3)    since March 2026, to his understanding, the AML/CTF Act has required BCAU to take responsibility for ensuring it receives and passes on prescribed information in respect of payments it processes for all transactions;

(4)    the effect of many of Bano’s clients being located outside of Australia is that they may operate from jurisdictions without robust AML/CTF regulatory frameworks. In those circumstances, Mr Green would not be comfortable that Bano had taken adequate steps to ensure that payments from or to such clients do not contravene AML/CTF laws unless Bano had demonstrated significant transaction monitoring capabilities (which, which he considers it has not); and

(5)    the effect of Bano’s clients supporting “third party nested flow” (otherwise known as double nesting) is that neither of BCAU or Bano has visibility over such transactions. That leaves BCAU in a vulnerable position because it is reliant on Bano satisfying itself that its client (who may be based in a high-risk jurisdiction) has sufficiently robust AML/CTF controls to ensure that their payments comply with the relevant Australian laws.

24    On 4 February 2026, Mr Anthony Yussuf (an Onsite Review Officer with BCAU who was on secondment from Banking Circle’s United Kingdom operations) sent an email to Mr Jarod Feng, the founder and global chief executive officer of the Bolt Group (Bano’s parent company) and Mr Woodward, attaching an AML questionnaire to be completed by Bano prior to an onsite review. Mr Yussuf and Mr Ben Austin, Chief Risk Officer at Bano, then exchanged emails concerning the agenda for the onsite review.

25    On 10 February 2026, Mr Austin sent an email to Mr Yussuf attaching the completed AML questionnaire and associated documents. On the same day, Mr Yussuf sent an agenda for the onsite review to Mr Feng, Mr Woodward and Mr Austin which was scheduled to take place on 12 February 2026.

26    On 12 February 2026, Mr Yussuf attended Bano’s offices for the onsite review with representatives of each of BCAU and Bano, including Mr Feng and Mr Woodward. The onsite review lasted approximately 2.5 hours. Bano’s representatives delivered a presentation on Bano’s business model, products and services, client base and governance and compliance measures.

27    Between 13 February 2026 and 26 February 2026, Mr Yussuf issued requests for further information to Mr Austin. Mr Austin responded to each of those requests.

28    Mr Yussuf then prepared a report setting out his findings (Onsite Report). The Onsite Report contained the following summary:

The onsite review and transaction review covering Oct 2025 to Jan 2026 determined that [BCAU] is servicing Bano’s high-risk flow and high-risk client base, with its lower­ risk flow being routed through another correspondent, Moonova [sic: Monoova, another payment services provider].

The majority of transactions supported are related to their VASP clients although the nature of flow being supported is not always readily transparent in payments due to Bano’s Virtual Account offering solution and their business model/risk appetite which allows their “institutional clients” to further issue Virtual Accounts downstream to their underlying customers. This means payments often only show the name of the “end-user/underlying customer and have no reference to Bano’s VASP client on whose behalf the payments are being processed.

Due to the nature of Bano’s flow, and its client base being predominantly high risk, it is expected that Bano should have a strong financial crime framework in place. A number of gaps have been identified which raise concerns about Bano’s ability to manage the risk associated with its flow, as well as risks across its wider client base. These include:

•    Inadequate resourcing for the risks and clients supported (e.g., six onboarding analysts for a customer base of approximately 40,000).

•    No independent AML audit since 2023

•    No specific EDD [enhanced due diligence] questionnaire for higher risk industries

•    Low volume of SAR [suspicious activity report] filings for the volume of clients, transactions and risk which they support with the framework appearing reactive in nature with filings occurring only when suspicious activity is identified from external sources.

In summary, it is not recommended that BCAU support Bano’s retail or corporate flow given (1) the control framework gaps outlined in this report and (2) the concerns noted within its client base during the overall review. Some VASP firms supported by Bano are known to Banking Circle; however. it is also not recommended that this flow continues until such time as:

1)    Each VASP client is identifiable from payments processed (e.g., issued their own BSB and/or visible in the payment);

2)    Banking Circle has assessed and approved each individual VASP, and Bano share their EDD

It should be noted that Bano has previously been rejected as a client in 2024 due to a weak control framework and concerns surrounding their client base.

29    When he received the Onsite Report Mr Green was (and remains) particularly concerned by the following matters in it, which in his view give rise to a heightened risk of financial crime going undetected in Bano’s payment flow:

(1)    transactions facilitated by Bano have incomplete data, which hinders BCAU’s and Bano’s ability to undertake transaction monitoring. For example, if money is transferred from a payer to Bano’s customer and then transferred from Bano’s customer to an end-user, but the transaction information only shows the names of the initial payer and the recipient, BCAU cannot identify the Bano customer which was interposed in the transaction. BCAU therefore cannot assess whether Bano’s customer is one which BCAU is comfortable using a BSB sponsored by BCAU;

(2)    Bano’s level of resourcing. In particular, Mr Yussuf’s report stated that, as at the date of the onsite review, Bano employed six officers to support client onboarding and six officers to monitor warning indicators for financial crime. In Mr Green’s experience, this level of resourcing is significantly disproportionate to Bano’s customer base of around 40,000 customers (as reported by Bano in the AML questionnaire) and the higher-risk industries that it services (noting that 65 per cent of its clients are cryptocurrency firms as reported in the AML questionnaire). Mr Green also considered that it was relevant that Bano has provided payment processing services for a relatively short period of time (it was founded in 2020 and granted an AFSL in December 2022). In his experience, as a general rule, payment processing firms with a higher-risk customer base and a shorter history of transaction monitoring require more human resources to effectively monitor transactions because their systems have had less time to train on the payment flows;

(3)    Bano filed 55 Suspicious Activity Reports to AUSTRAC over a 12-month period. Such reports must be filed in respect of each transaction where a payment processor suspects possible financial crime. In Mr Green’s experience, 55 is a very low number of such filings having regard to the nature of Bano’s customers which includes virtual asset providers and cryptocurrency firms. In his experience. this could indicate that Bano is failing to identify suspicious transactions (likely because it is understaffed) or does not fully understand the risks and nature of the transactions that it is processing;

(4)    during the onsite review, Mr Phillips disclosed to Mr Yussuf that Bano often relies on intelligence from third parties before it files a Suspicious Activity Report. This may suggest that Bano takes a reactive approach to suspicious transaction reporting and does not proactively monitor the payments it processes; and

(5)    Bano has not had an independent AML audit since November 2023. In Mr Green’s experience it is considered good practice to have an AML audit every 18 months to two years.

30    On 26 February 2026, Ms Watt sent a further email to Mr Green setting out further analysis she had conducted on payment data related to Bano. Ms Watt concluded that the vast majority of payments that BCAU processed for Bano appeared to be related to cryptocurrency and appeared to be payments made by the underlying customers of Bano’s institutional clients rather than payments made by Bano’s customers themselves. That is, the vast majority of payment flows being processed by Bano through BCAU was nested cryptocurrency flow.

31    Mr Green was (and remains) concerned by what Ms Watt said in her email because:

(1)    cryptocurrency-related payments, particularly payments which originate from overseas, are inherently at higher risk of breaching AML/CTF laws;

(2)    the payments appeared to be double nested, which places BCAU in a vulnerable position; and

(3)    he considered that Bano’s processing of payments for merchants who are trading cryptocurrency without obtaining BCAU’s approval was not consistent with the contract and resulted in a breakdown of BCAU’s trust in Bano.

32    On 5 March 2026, Mr Mark Tibbles, the then chief executive officer of BCAU sent an email to Mr Feng stating:

We refer to our ongoing transactional and due diligence review that we are conducting on Bano Pty Ltd, including our recent onsite visit and follow-up correspondence.

As part of our review, we have identified transactional activities that are in breach of your declaration and approval obligations under our System User Agreement. In addition, we have concerns that your AML/CTF framework is not robust enough to support your high-risk customer base and the nature of flow you are supporting. Some examples identified in our review include:

•    Customer CDD and EDD framework:

•    In respect of your FI, PSP, and VASP clients, we identified insufficient assessments of your clients’ financial crime control framework. This is required to assess the risk associated with their customer base and the payment flow that they look to support.

•    You have only six onboarding analysts responsible for roughly 40,000 users, which in our view makes your current staffing levels inadequate for the high-risk profile elements of your business. This is particularly relevant in situations where your model involves Bano also onboarding the underlying customers of some of your higher risk VASP clients.

•    Transaction monitoring:

•    With respect to your suspicious activity reporting, your framework appears to be reactive in nature in only identifying suspicious activity, evidenced by reliance on external reports. We note that you only lodged 55 SARs filed in 2025 despite having a high-risk customer profile. This further indicates to us that you have deficiencies in your transaction monitoring framework in breach of your obligations under the AML/CTF Laws.

•    Processing Crypto flow

•    As you will be aware, section 31.5 of the System User Agreement requires you to obtain our prior written permission before processing transactions associated with customers who are trading Crypto. In the course of undertaking our review, it has come to our attention that your firm is processing flow for multiple customers who are utilising Banking Circle Australia to support Crypto activity without our prior written permission. As a result, processing these transactions is a material breach of the System User Agreement and we reserve our right to terminate the Agreement on account of this breach. With respect to your email correspondence with Andrew Rigg on 27 September 2024, this email was a general statement about onboarding customers without [BCAU’s] approval, and it did not override or vary the specific requirements set out in the System User Agreement to obtain our written permission prior to processing transactions for customers who are trading Crypto.

•    A review of transactional activity, alongside BSB and account numbers, indicates that flow supported is primarily for your crypto customers.

•    OKX flow

•    OKX flow processed via us is co-mingled with other crypto and client flow associated with BSB [XXX]. Given the nested nature of this flow (the issuance of your Virtual Accounts to the underlying consumers of OKX), we are not able to determine which transactions relate to underlying consumers of OKX or other crypto clients or client types. This reduces our ability to monitor the flow.

For these reasons, we require you to cease processing all crypto-related transactions within 48 hours of this communication. Please provide written confirmation that this activity has ceased and that alternative arrangements have been implemented. After the 48-hour period we will block any flow that is in breach of this notice, except for outflows by your customers through DE only where appropriate and in a controlled manner.

Our review is substantially complete, and we would expect to engage with you and your team in the near term to review the findings. At that stage we will advise of any further actions we require you to take, and/or whether we will be introducing further restrictions on your activities.

Our goal through this review process is to ensure that we, and all our clients, operate within the network with the right processes and controls in place to maintain the network integrity and reputation.

We look forward to receiving confirmation that you have ceased processing crypto-related transactions, and we would be happy to address any questions you may have in respect of this notice.

(underline emphasis in original)

33    Following a response on the same day from the solicitors for Bano, BCAU withdrew that notice without prejudice to its ability to pursue rights and remedies available to it.

34    On 10 June 2026, the solicitors for BCAU provided the June notice to Bano. That notice purported to be an exercise of BCAU’s rights under cl 15.3 of the contract. As part of the June notice, BCAU asserted that:

(1)    during the course of an extensive consultation with Bano, BCAU had raised concerns with Bano’s payment flows and AML/CTF control framework. (Those concerns were described in the June notice by reference to five broad areas, namely: (a) the prevalence of high-risk operations and related activities; (b) the occurrence of crypto-related activity without the approval of BCAU; (c) nesting and downstream activity; (d) poor data quality; and (e) onboarding, auditing, reporting and enhanced due diligence processes);

(2)    those concerns had not been resolved by the information provided by Bano;

(3)    BCAU had its own obligations under AML/CTF laws and the suspension of the Settlement and Processing Services to Bano (with the eventual termination of those Services pursuant to cl 17.6 of the contract) was necessary to ensure that BCAU continued to operate in compliance with those obligations; and

(4)    thus, the suspension of the Settlement and Processing Services to Bano was a necessary step to protect other uses of the Settlement and Processing Services which rely upon the continued provision of those services by BCAU in a compliant manner.

35    The June notice then set out a proposed timeline for the suspension of the Services under the contract, with “All ATM and Crypto ATM businesses” to be suspended within 48 hours of receipt of the June notice and other suspensions to occur within 10, 30 and 90 days of that notice.

36    On 23 June 2026 Bano filed the present application.

37    On 24 June 2026, Justice Younan ordered that BCAU be restrained from giving effect to the June notice, or to any suspension on substantially similar grounds, until 5:00pm on the next business day after the hearing of the present application.

38    On 3 July 2026, the solicitors for BCAU served the July notice. That notice purported to be an exercise of BCAU’s rights under cl 15.4 of the contract. As part of the July notice, BCAU asserted that it was exercising its right of suspension under cl 15.4 of the contract on the basis that it believed on reasonable grounds that Bano had breached cl 31.5 of the contract.

39    The July notice also set out a proposed timetable for the implementation of the suspension.

40    The July notice also purported to give notice to Bano pursuant to cl 81.1 of the contract on the basis that BCAU believed on reasonable grounds that it was necessary to give such notice so as to prevent loss to itself.

C.    Relevant principles

41    The relevant principles are well-established and were not in dispute on this application. It is sufficient to note that the relevant principles are explained in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; (1968) 118 CLR 618 at 622 to 623 (Kitto, Taylor, Menzies and Owen JJ) and Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). The principal considerations are whether:

(1)    the applicant for injunctive relief has established a prima facie case; and

(2)    the balance of convenience favours the granting of an injunction.

42    As to (1), it is not necessary for Bano to show that it is more probable than not that it will succeed at trial. Rather, it is sufficient for it to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: O’Neill at [65] (Gummow and Hayne JJ). The two considerations are related in that the strength or otherwise of the prima facie case will affect the balance of convenience, and vice versa.

D.    PrimA facIE case

D.1    Introduction

43    I turn now to whether there is a prima facie case.

44    Bano has served a draft originating application and a draft statement of claim. From those draft documents the claims that Bano proposes to pursue include, in broad terms and with a focus on the claims addressed on this application:

(1)    claims for a final injunction and for declaratory relief with respect to the June and July notices, based upon the terms of the contract (and in particular cll 15.3, 15.4 and 81.1);

(2)    claims for declaratory relief on the basis that:

(a)    the contract contains unfair terms (i.e. cll 15.3 and 81.1) within the meaning of s 24 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) and s 12BG of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act);

(b)    BCAU contravened s 23 of the ACL and s 12BF of the ASIC Act; and

(3)    claims for declaratory relief and in damages, for unconscionable conduct in contravention of s 21 of the ACL in all of the circumstances, including: BCAU’s conduct during and following its consultation; the March notice; a contended absence of specific AML/CTF compliance concerns being raised during various meetings; issuing the June and July notices in order to bring about the termination of the contract so as to cripple Bano, a competitor, and to take its customers; and BCAU’s knowledge of Bano’s inability to provide banking services without access to BCAU’s payment infrastructure and of the injury that would follow by the suspension of that access.

45    The focus of the submissions on this application, understandably in view of the nature of the interlocutory relief sought, was upon the claims in contract.

D.2    July notice

46    It is convenient to start with the July notice. That notice relies upon suspension under cll 15.4 and 81.1.

D.2.1    Clause 15.4

47    Pursuant to cl 15.4, exercise by BCAU of its right to suspend Bano’s access to a Settlement and Processing Service requires the formation of a reasonable belief on the part of BCAU that Bano has materially breached the contract.

48    The July notice includes:

5.    By this letter, BCAU puts you on notice that, further to and/or in the alternative to that notice of suspension, BCAU is exercising its right to suspend under clause 15.4 of the System User Agreement on the basis that it believes on reasonable grounds that Bano has breached clause 31.5 of the System User Agreement.

6.    The basis of BCAU’s belief is set out below.

Material Breach

7.    Clause 31.5 of the System User Agreement requires Bano to, among other things, obtain BCAU’s express written permission before processing any transactions through BCAU associated with customers who trade in Crypto, Gaming and/or Gambling. Clause 31.5 also provides that failure to obtain such approval will be a material breach of the System User Agreement.

8.    BCAU believes that Bano has processed crypto-related transactions for customers without written permission in breach of that clause.

9.    This concern was raised in paragraph 12(b) of our letter of 10 June 2026, which stated that our client had observed “a number of transactions across high-risk virtual asset providers, crypto-traders, gaming and gambling operators and crypto­ATM operators...” and “the processing of payments relating to Bano’s client “Binance”...”.

10.    That letter was not the first time that BCAU had sought to raise this concern with Bano. It was raised squarely in March 2026 by the following correspondence (which we note is exhibited to Mr Woodward’s affidavit of 23 June 2026):

(a)    In an email sent by Mark Tibbles of BCAU to you on 5 March 2026, BCAU noted that it had become aware that Bano was “processing flow for multiple customers who are utilising [BCAU] to support Crypto activity without our prior written permission”, that this amounted to a material breach, and that BCAU reserved its right to terminate the System User Agreement. Mr Tibbles’ email requested that Bano cease processing crypto-related transactions within 48 hours of that email.

(b)    In a letter sent by Clayton Utz in response on 5 March 2026, Bano asserted that it had been given approval to process transactions associated with customers who are trading Crypto by an email dated 27 September 2024 sent by Andrew Rigg. Bano demanded that BCAU withdraw its request that Bano cease processing crypto-related transactions.

(c)    By letter dated 6 March 2026, BCAU withdrew its request expressly on the basis that such withdrawal was “without prejudice to any rights or remedies” available to BCAU.

11.    Bano did not, during the course of that correspondence, dispute the fact that it processes transactions for customers trading in Crypto. Its position was that BCAU had, by Mr Rigg’s email of 27 September 2024, “provided clear written approval for Bano to process transactions associated with customers who are trading Crypto”.

12.    Clause 31.5 requires that Bano disclose each specific Crypto, Gaming or Gambling customer to BCAU and seek its written approval to process that customer’s transactions. It follows that Mr Rigg’s email did not amount to permission for the purposes of clause 31.5. Further, the email was not capable of waiving BCAU’s rights under clause 31.5 because it was not signed by BCAU as would be required by clause 35.1.

13.    In any event, Mr Rigg’s email was sent in response to your request that “for the next 6 month period we are approved to onboard more clients directly without the need to get your approval for each client one by one” (emphasis added).

14.    It follows that, even if Mr Rigg’s email constituted permission for the purposes of clause 31.5, any such permission did not extend to customers onboarded after 27 March 2025.

15.    BCAU understands that, as at 15 June 2026, Bano continued to process transactions through BCAU associated with at least the following customers who trade in Crypto and were onboarded after 27 March 2025:

(a)    Kucoin (Axis One);

(b)    Zerocap;

(c)    Globiance;

(d)    XNB.

16.    Bano did not obtain BCAU’s written permission to process transactions for the customers listed above.

17.    It follows that, even if Mr Rigg’s email of 27 September 2024 constituted “written permission” for the purposes of clause 31.5 (which BCAU denies), such permission did not extend to any of the customers listed above.

(bold and italic emphasis in original)

49    The formation of a reasonable belief on the part of BCAU that Bano has materially breached cl 31.5 of the contract involves belief on reasonable grounds as to: (1) the meaning of cl 31.5 of the contract; and (2) whether Bano engaged in conduct that breached cl 31.5, applying the meaning in (1).

50    As to the meaning of cl 31.5, BCAU’s belief is set out in the July notice at paragraph 7:

Clause 31.5 of the System User Agreement requires Bano to, among other things, obtain BCAU’s express written permission before processing any transactions through BCAU associated with customers who trade in Crypto, Gaming and/or Gambling. Clause 31.5 also provides that failure to obtain such approval will be a material breach of the System User Agreement.

51    Bano puts in issue the reasonableness of that construction. In essence, it contends that:

(1)    the third sentence in cl 31.5 – “Any Bano customers who are trading Crypto, Gaming or Gambling must be disclosed to [BCAU] and no transactions associated with those customers may be processed through [BCAU] unless permission has been granted by [BCAU] in writing” – should be construed as requiring:

(a)    disclosure by Bano to BCAU of customers who are trading Crypto, Gaming or Gambling;

(b)    that before “transactions associated with those customers” (i.e. any of those customers) may be processed, written permission must have been granted by BCAU;

(2)    thus the permission contemplated by that sentence is:

(a)    permission to process a class of transactions (i.e. transactions for all Bano customers who are trading Crypto, Gaming or Gambling whether they have already been onboard and had an account established at the time of that permission or are not known to Bano); and

(b)    not permission in respect of processing individual transactions or the processing of transactions associated with individual customers.

52    Bano contends, in particular, that such a construction is supported by the surrounding circumstances known to each of Bano and BCAU that: (1) Bano has institutional clients which in turn have end user customers; (2) typically it is the individual end users who are trading in Crypto, Gaming or Gambling; and (3) the administrative burden of checking each and every customer and providing a separate grant of permission for each of them could not have been contemplated and the more likely contemplation of the parties was that BCAU would rely upon reaching a state of satisfaction as to the adequacy of Bano’s AML/CTF practices.

53    I have considered the various submissions made on behalf of each of the parties. Having done so, I have formed the view that Bano has a prima facie case with respect to whether BCAU had a reasonable belief as to the construction of cl 15.4 of the contract. However, that case is weak.

54    I turn now to whether BCAU had formed a reasonable belief that Bano had engaged in conduct that breached cl 31.5 of the contract. The basis of BCAU’s belief is set out at paragraphs [8] to [17] of the July notice.

55    Bano contends that in the event that BCAU’s belief as to the meaning of cl 31.5 was a belief based upon reasonable grounds, then the requisite permission was granted by dint of the following exchange of emails in September 2024:

(1)    an email from Mr Feng to Mr Andy Rigg, Chief Customer Officer of BCAU, dated 27 September 2024 in which Mr Feng stated:

Thanks for the fantastic support from your team, next month we will go live with the NPP account and we want to onboard more clients.

Based on the good work of our compliance and risk controls, we have had a very low dispute rate in the past 6 months (around 0.1-0.2%). We would like to propose that for the next 6 month period we are approved to onboard more clients directly without the need to get your approval for each client one by one. As you know we have previously agreed to obtain your approval.

Our target is open 30k accounts and get more than 1mil NPP transactions. We will monitor the client to ensure everything runs well over the next 6 months and we can sit down to review and discuss the arrangement thereafter. Of course we’re happy to continue to engage with you when and as needed. ; and

(2)    Mr Rigg’s response of the same date:

Yes agree you apply approval to onboard without our approval.

What I would propose is we have a weekly meeting in the early days to work through opportunities and any challenges and suggestions.

Hope that is ok with you.

56    Bano’s contention that this email exchange provided the requisite approval or permission for the purposes of cl 31.5 has considerable difficulties. The primary difficulty – in a context in which the July notice identifies payments for customers trading in cryptocurrency and who appear to have been onboarded since July 2025 – is that Bano’s contention relies upon the approval or permission operating at a time after the expiry of six months from 27 September 2024 (i.e. 27 March 2025), when the most natural reading of that email exchange is that the approval or permission requested and provided was for a period of only six months.

57    In summary, I consider that Bano has a prima facie case with respect to the July notice and cl 15.4 of the contract. However, that case is weak.

D.2.2    Clause 81.1

58    As noted above, by the July notice BCAU purported to suspend Bano’s ability to make Osko or other NPP Payments under cl 81.1 of the contract.

59    Clause 81.1 of the contract requires BCAU to form a belief on reasonable grounds that the suspension of Bano’s ability to make such payments is necessary to prevent loss to (relevantly) BCAU.

60    In this regard, BCAU:

(1)    relied upon its concerns as to Bano’s payment flows, conduct and AML/CTF controls, as set out in the June notice;

(2)    stated that it believed that suspension was necessary to prevent loss, including to prevent loss arising from breach of AML/CTF obligations and related regulatory consequences, counterparties blocking payments to BCAU’s BSBs because of the difficulty in fulfilling their own regulatory obligations and their perceived heightened risk in dealing with BCAU, and damage to BCAU’s reputation; and

(3)    indicated that it proposed the same timetable for the implementation of the suspension.

61    Bano’s case as pleaded contends that cl 81.1 does not permit BCAU to suspend Bano’s ability to make Osko or other NPP Payments on the basis of generalised concerns about Bano’s AML/CTF compliance framework, its customer base composition, or speculative risks to BCAU’s reputational regulatory standing that do not arise from the use of the NPP payments service to process particular transactions. Bano also submitted that the loss referred to in cl 81.1 can only be a loss that might otherwise be suffered as a consequence of Bano making or being in a position to make Osko or other NPP Payments; and that the July notice does not suggest any apprehension on the part of BCAU that such loss might occur.

62    I am satisfied that this aspect of Bano’s claim is sufficiently arguable. However, based on the matters particularised in the statement of claim and the submissions made on this application, I consider it to be weak.

D.3    June notice

63    I turn now to the June notice.

64    I note at the outset that BCAU accepts that Bano has an arguable case with respect to the June notice, but submits that it is weak.

65    The June notice purported to be an exercise by BCAU of a right under cl 15.3 of the contract to suspend the operation of the Settlement and Processing Service vis-à-vis Bano.

66    Clause 15.3 of the contract requires the formation of a belief on reasonable grounds that the suspension of the service immediately is necessary to protect the interests of BCAU and/or users of that Service.

67    Bano’s contentions as to the invalidity of the June notice may be summarised, in broad terms, as follows:

(1)    the Settlement and Processing Service, which is expressed in the singular, is a reference to that Service as it applies to all users (expressed in the plural) and not as it applies to individual users;

(2)    BCAU is entitled to suspend the operation of that Service only with respect to all users and is unable to suspend such operation with respect to an individual user;

(3)    the presence of other specific provisions within the contract, which deal with concerns as to AML/CTF controls (cll 31 and 32), suggests that cl 15.3 should not be construed as providing a power to suspend the operation of the Service by reference to concerns as to AML/CTF controls;

(4)    the power was not used for its intended purpose of suspension but rather to achieve termination of the contract; and

(5)    the reasonable belief includes a belief that immediate suspension is necessary and there can have been no such reasonable belief in circumstances where the June notice did not purport to provide for immediate suspension but instead a staggered suspension over several months.

68    Having considered the terms of the contract and the submissions of the parties, I am satisfied that Bano has a sufficiently arguable case that the June notice was invalid. Contrary to the submissions of BCAU, I do not regard this aspect of the case – on its own – as weak. Nor do I regard it as particularly strong.

69    However, it is necessary to recognise that in order to obtain a final injunction at trial of any utility, Bano must establish that both the June notice and the July notice were invalid. In other words, success with respect to the June notice will be pyrrhic if Bano fails with respect to the July notice. In circumstances where, as noted above, Bano’s case with respect to the July notice is weak it follows that success with respect to the June notice may not assist Bano.

D.4     Unfair contract terms and unconscionability

70    I am not satisfied on the evidence on this application that Bano has a prima facie case with respect to the alleged unfair contract terms or the claim in unconscionability. As to the former, the evidence of this application includes evidence which shows that the contract was negotiated and thus was not a standard form contract. As to the latter, the evidence on this application falls well short of establishing any prima facie claim of unconscionability.

D.5     Conclusion as to prima facie case

71    For the foregoing reasons, my overall assessment is that Bano has a prima facie case, but it is weak.

E.    Balance of convenience

72    I turn now to consider where the balance of convenience lies.

73    As noted above, my conclusion that Bano has a prima facie case, but on the evidence on this application such a case appears to be weak, is a factor which informs consideration of the balance of convenience.

74    If an injunction were to be granted then the contract would likely continue until the determination of the proceeding.

75    On this scenario, Mr Green has provided evidence suggesting that there is a real possibility that BCAU would be exposed to a loss by continuing to deal with Bano. Mr Green’s evidence, in summary, is to the effect that:

(1)    BCAU has legal obligations to conduct ongoing and enhanced customer due diligence to identify, assess, manage and mitigate the risks of money laundering and terrorism financing, including among other things by monitoring for unusual transactions and behaviours of customers which may raise suspicions; together with legal obligations to comply with its own AML/CTF policies and to ensure it does not do anything which adversely affects the integrity of the NPP scheme;

(2)    there has been a breakdown in BCAU’s trust in Bano’s ability to competently administer its AML/CTF framework. This is in circumstances where BCAU operates in a highly regulated environment which is subject to increasing regulation; and

(3)    he considers that continuing to provide services to Bano creates a material risk to BCAU which cannot be effectively mitigated.

76    That risk is in summary:

(1)    a risk of failing, and of being seen to fail, to:

(a)    manage and mitigate the risks of money laundering, terrorism financing and proliferation financing, as it is required to do by the AML/CTF Act and the NPP Rules;

(b)    comply with its own AML/CTF program, as it is required to do by the AML/CTF Act and by the NPP Rules; and

(2)    thereby coming under investigation by regulators, particularly APRA for potential breaches of prudential standards and/or AUSTRAC for potential breaches of AML/CTF obligations.

77    Mr Green’s evidence is that the fact of such regulatory action may cause severe and irreversible damage to BCAU’s reputation and business. For example, if AUSTRAC were to direct BCAU to appoint an external auditor, the fact of that direction would likely be made public by AUSTRAC. In Mr Green’s view, the likely effect of such a direction becoming known in the industry is that other banks which participate in the NPP and the BECS may determine that it is too risky for them to deal with BCAU as a counterparty, including because by doing so they too may be investigated by regulators. All participants of the NPP and the BECS (including BCAU) have obligations to comply with the AML/CTF Act. Mr Green is concerned that if other participants of the NPP and the BECS perceive that BCAU allows high-risk activities on its payment rails, and that regulators are concerned about that activity, they will conclude that continuing to deal with BCAU is outside of their acceptable risk appetite and will “de bank” BCAU by blocking payments to BSBs associated with BCAU to mitigate their own risk.

78    Mr Green also provided evidence that he perceives a material risk that if BCAU is required to keep providing services to Bano – even without any action being taken by a regulator – then, counterparty participants on the NPP or the BECS may block payments to BCAU’s BSBs. That risk arises, he says, because BCAU’s counterparty banks may perceive that dealing with any counterparty bank which services a customer who processes transactions with a heightened AML/CTF risk like Bano is outside of their acceptable risk appetite, such that their own AML/CTF programs (and thus the AML/CTF Act and the NPP Rules) require them to take steps to reduce their risk exposure. In Mr Green’s experience, if one major Australian bank decides that allowing payments to BCAU’s BSBs falls outside of its acceptable risk appetite, then there is a strong possibility that the other major Australian banks will follow. The effect of a counterparty or counterparties blocking payments to BSBs associated with BCAU would be that BCAU’s customers (and their customers) would be unable to receive funds in their accounts associated with BCAU sent from the firm which blocked the BSB. In Mr Green’s experience, if customers (and their customers) cannot receive funds from certain banks in their accounts, they are likely to switch to a different bank.

79    I accept, on the basis of this evidence, that if the injunction were to be granted then BCAU would be exposed to a real risk of loss. Thus the existence, and the worth, of any undertaking proffered by Bano is a matter of considerable importance.

80    Bano proffers the usual undertaking as to damages. However, it is clear from Bano’s latest financial statements, being its financial statements for the year ended 30 June 2025 that it is unlikely to be in a position to meet that undertaking.

81    The directors’ report within those financial statements and which is dated 30 October 2025, records that as at 30 June 2025, Bano had accumulated losses of $8,368,301 including a loss for the 2025 financial year of $1,784,199 and a loss for the previous financial year of $1,642,088. The directors considered that Bano would be able to continue as a going concern based upon: (1) the close monitoring of its monthly cash flow in business performance; and (2) the confirmation provided by one of the directors that he would provide the necessary financial support to ensure Bano’s ability to pay its debts as they fell due. A similar statement is made to note 1 to the financial statements.

82    The independent auditor’s report, also dated 30 October 2025, draws attention to note 1 to the financial statements and expresses the view that the matters stated in that note “indicate that a material uncertainty exists that may cast significant doubt on [Bano’s] ability to continue as a going concern”.

83    Bano also proffers security for its undertaking in the form of a guarantee and indemnity executed as a deed poll on 8 July 2026 by Aurora R & D Pty Ltd, in its personal capacity and its capacity as trustee for the Feng Family Trust. However, I am not satisfied that this guarantee and indemnity provides any satisfactory security for the undertaking as to damages.

84    The information that has been adduced into evidence as to the ability of Aurora R & D to satisfy its obligations under the guarantee and indemnity is insufficient to provide any confidence in its ability to meet its obligations under the guarantee and indemnity.

85    In this regard, Bano relies upon a letter dated 6 July 2026 from Mr Yu Tao, an accountant with PT Business Advisory Pty Ltd (PTB), in which Mr Tao states that as at 6 July 2026:

(1)    PTB is an external accountant engaged by Mr Feng;

(2)    Aurora R & D, in which Mr Feng holds an interest, owns all of the issued shares in Aurora Investment Holding Pty Ltd;

(3)    Aurora Investment holds shares in:

(a)    Alex Corporation Limited, with an estimated value of $12,072,224.28; and

(b)    Quantoz Payments B.V. with an estimated value of $990,900.00.

86    However, there is no evidence of Aurora R & D’s net financial position, only that it holds an indirect interest in the above-mentioned shares. Evidence that it holds particular assets is of limited value when the Court has not been informed as to its liability position and thus is not in a position to make an informed assessment of the worth of the security proffered in support of the undertaking.

87    There is also no evidence as to the liabilities owed by Aurora R & D or Aurora Investment; or as to the prior Security Interests that Aurora R & D had granted prior to the date of the guarantee and indemnity (cl 6(a)). Further:

(1)    the evidence supporting the suggested value of the shares held by Aurora Investment is slight. Mr Tao’s letter states that he has relied upon the veracity of information provided to him (of which the Court has no visibility); and that the letter should not be relied upon as a formal valuation and has been provided only for information purposes; and

(2)    the guarantee and indemnity was executed several days after Mr Tao’s letter, which letter speaks only as at its date.

88    It follows that I am not able to treat the proffered undertaking as to damages as a promise of any value.

89    If the injunction were not to be granted, then BCAU would likely act in accordance with the notices that it has given to Bano. This would involve a suspension of services in accordance with the timetables set out in the notices.

90    Bano’s position is that if this were to occur then it would suffer immediate, severe and essentially irreversible harm. In this regard it relies upon the evidence of Mr Woodward, in his first affidavit that:

(1)    without access to the services provided by BCAU, Bano’s business cannot operate;

(2)    there are very few banking providers in Australia willing to support cryptocurrency related payment services apart from BCAU, and he estimates it would take a minimum of 12 months to on-board another supplier in substitution for BCAU ;

(3)    since becoming aware of the 5 March 2026 email, he has made enquiries of alternative banking providers regarding the possibility of establishing replacement banking arrangements for Bano’s cryptocurrency related services but the only potential alternative banking provider who, in his view, would have the infrastructure necessary to provide the services that BCAU provides is Cuscal Limited and he has been informed by Mr David Foster, the Chair of Bano that Cuscal is not willing to become the banking provider for Bano’s customers because the composition of Bano’s customer base was different from that of Cuscal (paragraph 98 of his affidavit); and

(4)    thus, the suspension would effectively destroy Bano’s payments infrastructure business, which is by far its predominant source of income.

91    Mr Woodward’s evidence of his inability to secure a replacement provider of payment infrastructure is far from persuasive and barely rises above the level of assertion. In this regard, it is noteworthy that Mr Woodward, in his second affidavit, did not address the contrary evidence of Mr Green that there are several ways in which a PSP such as Bano may access payment systems, namely:

(1)    through a bank (including the major Australian domestic banks) which provides the payment infrastructure to allow a PSP to access a payment system;

(2)    through international banks (such as Citi and JP Morgan) which have access to payment systems; and

(3)    through other PSPs which are sponsored by a bank with direct connections to payment systems, including Monoova (which Mr Green understands Bano to use), Azupay and Zepto.

92    As to (3), there is also in evidence an email dated 24 February 2026 from Mr Austin to Mr Yussuf, which states: “Retail customers: 6690 through Monoova and 120 through [BCAU], both numbers include staff test accounts”, apparently sent in response to a request from Mr Yussuf the previous day for “…a breakdown of the individual flow currently going through [BCAU]. This is related to consumer app. As I understand it most of the flow is going through Moonova (sic) however since January 2025 you have been doing retail flow via [BCAU] as well”. This suggests the availability of an alternative platform.

93    Also, the documents produced in answer to a notice to produce calling for “ [a]ll documents relating to the enquiries of alternative banking providers regarding the possibility of establishing replacement banking arrangements for [Bano] or the enquiries with Cuscal referred to [in paragraph 98 of Mr Woodward’s first affidavit]”, hardly paint a picture of a concerted or sustained effort to find a replacement payments infrastructure provider from March 2026.

94    In my view in assessing, as part of the balance of convenience, any problems of Bano in obtaining a new payments infrastructure provider, it is relevant that such problems are not problems for which BCAU is responsible, particularly in a context in which the contract is non-exclusive (with the evidence suggesting that Bano expressly declined, during the negotiation of the contract, to enter into an exclusive arrangement).

95    Further, the Court ought be reluctant to require – whether pursuant to an interlocutory or final injunction – an entity which is obliged to comply with the AML/CTF Act and related obligations, to continue in a contractual relationship with a counterparty that it has genuinely assessed as posing an unacceptable risk with respect to that Act. In this regard, see Sun Capital Investments Pty Ltd (ACN 635 951 601) v Westpac Banking Corporation Limited (ACN 007 457 141) [2026] VSC 216 at [172] and [187(b) and (c)] (Matthews J). The evidence available on this application – being the evidence of Mr Green and in particular the contemporaneous business records created before these parties fell out recounted above – is well capable of supporting a conclusion that a genuine assessment has been made by BCAU.

96    In summary, the balance of convenience is strongly in favour of not granting the relief sought.

F.    conclusion

97    Taking all of the above into account, I have come to the conclusion that the application must be dismissed. There appears to be no reason why costs should not follow the event. I will make orders accordingly.

Associate:

Dated:    16 July 2026