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16-078MR ASIC commences proceedings in connection with the spike in securities prices on ASX on 18 October 2012
ASIC has commenced proceedings in the Federal Court of Australia in Sydney against Whitebox Trading Pty Limited and its sole director and principal, Johannes Boshoff, following an investigation into the spike on 18 October 2012 in the prices of securities comprised in the S&P/ASX 200 Index (Index Securities).
ASIC alleges, among other market misconduct, that it was likely artificial prices for trading Index Securities would be created by order activities of Mr Boshoff and Whitebox on 18 October 2012, as well as on 4 earlier dates in 2012.
ASIC also alleges that false or misleading appearances as to market for Index Securities were created by orders that Mr Boshoff and Whitebox had placed on the ASX but did not intend to trade.
ASIC is seeking:
- declarations that Mr Boshoff and Whitebox contravened provisions of the Corporations Act
- orders that they pay penalties to the Commonwealth, and
- that they be restrained from providing financial services for a defined period.
Whitebox had been contracted to provide index arbitrage trading software and services to National Australia Bank Limited and the relevant order activities were conducted by Whitebox's trading personnel, including Mr Boshoff, while providing those services.
On 23 December 2013, ASIC accepted an enforceable undertaking (EU) from NAB in relation to its responsibility for the alleged market misconduct of Whitebox's trading personnel.
Links to the originating process filed by ASIC to commence its proceeding and to the EU are below.
Editor's Note 1:
On 14 April 2016, the Federal Court of Australia made case management orders in the matter, including orders for the filing and service of evidence, and ordered that the matter return to court on 3 August 2016 for further directions.
Editor's note 2:
The directions hearing scheduled for 3 August 2016 was deferred by consent and without appearance to 2 September 2016 and then, subsequently, at the request of the court, further deferred to 15 September 2016.
Editor's note 3:
At the request of the court, the case management hearing scheduled for 15 September 2016 was further deferred to 23 September 2016.
Editor's note 4:
On 23 September 2016, the matter was stood over to 3 March 2017, for a further case management hearing.
Editor's note 5:
On 3 February 2017, the case management hearing scheduled for 3 March 2017 was deferred by consent to 8 March 2017.
Editor's note 6:
On 8 March 2017, the Federal Court of Australia made case management orders in the proceedings, including that they be provisionally fixed for hearing for a period of 4 weeks commencing on 4 September 2017, and ordered that the matter return to court on 19 July 2017 for further directions.
Editor's note 7:
At the request of the court, the case management hearing scheduled for 19 July 2017 was deferred to 25 July 2017.
Editor's note 8:
In these proceedings, on 8 June 2017 the Full Federal Court considered the application of Chapter 2 of the Criminal Code in civil proceedings relating to certain breach of the Corporations Act (refer: 17-135MR).
Editor's note 9:
On 21 June 2017, the Full Federal Court decided that Chapter 2 of the Criminal Code does not apply in civil proceedings relating to breaches of the Corporations Act (refer: 17-192MR).
Editor's note 10:
The case management hearing scheduled for 25 July 2017 has been stood over until 28 July 2017.
Editor's note 11:
On 28 July 2017, the Federal Court of Australia made case management orders in the proceedings, including that the provisional liability hearing of the proceedings listed to commence on 4 September 2017 be vacated and deferred until 2 July 2018 and that a further case management hearing take place on 13 December 2017.