In Australian Securities and Investments Commission v BPS Financial Pty Ltd [2025] FCAFC 74 the Full Court of the Federal Court of Australia allowed ASIC’s appeal against the trial judge’s decision that BPS was exempt from the requirement to hold an Australian financial services (AFS) licence while it was an authorised representative of PNI Financial Services Pty Ltd (PNI). Background.

The Full Court decided that BPS could not rely on the ‘authorised representative’ exemption under the Corporations Act when issuing the ‘Qoin Wallet’, a non-cash payment facility, on its own behalf.

The Full Court found that BPS was acting on its own behalf when issuing the Qoin Wallet and not as a representative of PNI. Accordingly, the Full Court found that BPS was required to hold an AFS licence.

In the appeal, ASIC submitted that the authorised representative exemption in s 911A(2)(a) of the Act contains “an essential representative capacity requirement” which has the consequence that a person cannot be an authorised representative of an AFSL holder if the representative is itself the issuer of the financial product.

The Full Court noted that in upholding ASIC’s appeal, it was not necessary to decide whether a person can be an authorised representative of an AFSL holder where that person is the issuer of the financial product. Rather, the result of this appeal turned upon whether, based on the uncontroversial facts, BPS was acting in its capacity as an authorised representative of PNI during the relevant period.

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Author: David Jacobson
Principal, Bright Corporate Law
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The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.