Australian Securities and Investments Commission v BPS Financial Pty Ltd

Seniority of individuals responsible for contravention

1. BPS accepts that the conduct resulting in the contravention was primarily the responsibility of its directors including, in particular, Mr Wiese.

1. The objective of general deterrence may require the imposition of a penalty that is beyond the respondent's financial capacity to pay and which may cause insolvency: see Australian Competition and Consumer Commission v High Adventure Pty Ltd (2006) ATPR 42-091; [2005] FCAFC 247 at [11] (Heerey, Finkelstein and Allsop JJ). In Director of Consumer Affairs Victoria v Hocking Stuart (Richmond) Pty Ltd [2016] FCA 1184 at [32]-[33], Middleton J observed:

Therefore, the amount of penalty should, in general, be set having regard to an amount the contravener can realistically be expected to discharge and should not be unnecessarily oppressive. This is not determinative, but is a factor. Of course, if the contravener has organised his or her affairs to render themselves beyond sanction, different considerations will apply.

Nevertheless, a penalty should not be set so low that it does not meet the goal of general deterrence, even if that low penalty acts in the circumstances as a specific deterrent having regard to the individual financial circumstances of the contravener.

1. The evidence reveals that BPS is currently the subject of a small business restructuring plan under Pt 5.3B of the Corporations Act. Mr Wiese's evidence is that the imposition of any significant pecuniary penalty would likely result in BPS's insolvency, it being wound up, it being unable to maintain the Qoin App or Q Shop for the benefit of Qoin Wallet users, and a reduction in the liquidity and value of Qoin Tokens held by individuals and businesses (including those who received 4.3 million Qoin Tokens as part of the settlement of the class action proceedings earlier this year). As to this last matter, see Its Eco Pty Ltd v BPS Financial Limited (Settlement Approval) [2025] FCA 545 (Downes J). ASIC does not dispute that BPS would enter liquidation if a total penalty of $21 million, or even $10 million, was imposed.
2. ASIC submits that the size of the company may be relevant in determining the size of a pecuniary penalty that would operate as an effective specific deterrent citing Australian Securities and Investments Commission v Bit Trade Pty Ltd (No 2) [2024] FCA 1422 at [28] (Nicholas J). BPS agrees with this but submits that it is of limited significance when the contravener's business has shut down citing Australian Securities and Investments Commission v Ferratum Australia Pty Ltd (in liq) (No 2) [2024] FCA 701 at [13] (Kennett J). Having said that, BPS also accepts that the need for general deterrence remains, which is the case. It accepts that it is necessary that penalties which are imposed are, and are seen to be, more than just the cost of doing business.
3. In my view, to impose no penalty upon BPS for the Unlicensed Conduct, being what it proposes, would be incapable of deterring contraveners "from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention": Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [62]-[63] (Keane CJ, Finn and Gilmour JJ).
4. The fact that several years after the contraventions occurred, BPS is now on the "brink of insolvency" (according to Mr Wiese) does not change the primary purpose of the imposition of pecuniary penalties. What is to be deterred is contravening conduct.

1. The legal advice obtained by BPS with respect to the Unlicensed Conduct Case has been addressed above. This is a factor which supports a lesser penalty than might otherwise have been imposed.

1. BPS sought to engage with ASIC both before and after the institution of these proceedings.
2. Upon the Liability Judgment being delivered, BPS amended the AR Agreement with Billzy to reflect the reasons in that judgment.
3. BPS cooperated by voluntarily providing information and documents requested by ASIC in relation to penalty. Those documents included:

(1) copies of all relevant legal advices which BPS received, and the instructions provided in relation to those advices;

(2) documents detailing Qoin Token sales, and the revenue generated from those sales, between 30 January 2020 and 19 October 2023; and

(3) financial reports for the financial years ending 30 June 2020 to 30 June 2025.

1. ASIC submits that BPS did not voluntarily provide information or materials to ASIC during the course of ASIC's investigation or prior to these proceedings, and points to an email which Mr Wiese sent to ASIC on 10 February 2022 attaching a letter from BPS's then legal representatives which stated that BPS was not encouraging its employees to participate in voluntary interviews with ASIC. ASIC characterised this letter as BPS "discouraging" its employees from voluntary interviews.
2. However, the letter received from BPS's legal representatives on 10 February 2022 stated, "our clients are unfortunately unable to recommend to their employees that they accept ASIC's invitation to participate in voluntary interviews" and instead requested that ASIC proceed to issue examination notices to any persons it wished to interview. That BPS's legal representatives did not consider it advisable to recommend that employees attend voluntary interviews with ASIC is unremarkable in circumstances where the conduct of a formal interview under s 19 grants an examinee certain protections which a voluntary interview would not. Further, BPS made at least two employees available for voluntary interviews. The letter of 10 February 2022 also requested that ASIC issue s 19 notices in respect of any person that it wished to interview - demonstrating a willingness to facilitate such examinations rather than a desire to hinder ASIC's investigations.
3. ASIC also submits that BPS contested all of the alleged contraventions in its pleadings and at trial. While it is true that BPS contested both phases of the proceeding (liability and relief), BPS filed a submitting notice in and did not actively contest the appeal, and it also made important concessions throughout the liability hearing which helped to narrow the issues in dispute. Whilst I accept that such conduct, like BPS's cooperation with ASIC in response to its statutory obligations, is not worthy of specific reduction of any penalty - noting BPS is not seeking a "cooperation discount" for them - it remains relevant to the overall consideration of BPS's degree of cooperation.
4. ASIC submits that BPS has not expressed contrition. However, following receipt of the submissions by ASIC, Mr Wiese stated in his fourth affidavit that BPS "is genuinely remorseful for its conduct", and emphasises that BPS has endeavoured to communicate openly and constructively with ASIC and the Court, and to attempt compliance. The expression of remorse was not challenged on the basis that it was not genuine.
5. As to Mr Wiese's evidence in his first affidavit that he "cooperated fully during ASIC's 18-month investigation" and concerning cooperation generally, ASIC seeks a finding that Mr Wiese's evidence is not credible, or should be given little weight, in light of evidence given by Mr Wiese about a text which he sent to Mr Quinn asking him to have his executive assistant delete an email. However, the circumstances surrounding the text message were "incredibly vague" (as BPS submits) and the precise content of the email to be deleted is unknown and could not be recalled by Mr Wiese. Overall, I consider Mr Wiese gave evidence of his best recollection of the circumstances relating to the text message, being more than three years ago and when he was unwell and at home, with the result that I decline to make the finding sought.
6. Overall, BPS's conduct provides some support for a lesser penalty than might otherwise have been imposed.

1. As observed in the Liability Judgment, the value of Qoin Tokens is effectively linked to and may be affected by disruptions in the merchant ecosystem and overall market for Qoin. In light of this conclusion and accepting that the imposition of a significant penalty would likely result in BPS's insolvency, I agree with BPS that it would be unfortunate for there to be a negative impact on third parties holding Qoin Tokens, especially those claimants who received Qoin Tokens in lieu of money in the settlement of the class action proceedings.
2. The real question is whether the evidence established that there would be such a negative impact.
3. By his first affidavit, Mr Wiese sought that the "punitive actions in this matter, while important to highlight the dangers of operating an unlicensed business (albeit unwittingly) not be excessive to the extent that the current business is completely destroyed, with resultant harm to the businesses who rely on Qoin for a proportion of their trading". He also stated that he believed that "penalties and further adverse publicity will oppress BPS, making it impossible to service and support thousands of current users and their migration to other digital wallet providers".
4. During cross-examination, it was put to Mr Wiese that, because BPS's involvement in the Qoin Project has been wound back and overtaken in most ways by the Qoin Foundation, the liquidation of BPS would be unlikely to have any impact on the confidence in or liquidity of the value of Qoin Tokens. Mr Wiese's response was that negative impacts could still arise because he along with Mr Pathak and others would no longer be involved in the oversight of the Qoin Project. In my view, this answer sounded somewhat speculative and so I place little weight on this evidence.
5. Without clearer evidence that a substantial pecuniary penalty would necessarily have a corrosive effect on the market for Qoin and therefore disadvantage third parties, this factor carries little weight in this case.

1. By its written submissions, BPS submits that it "is not in a financial position to pay any sums in remediation because it had previously utilised most of the profits it received from the sale of the Qoin Tokens to re-buy that Qoin from community members in order to set up the BTX Exchange" and "largely emptied its inventory of Qoin Tokens [...] as part of the settlement of the Qoin class action". At the hearing, however, BPS's counsel argued that the act of paying out almost all of the Qoin Tokens received from BTX to members of the class action was itself a remedial step because it effectively involved BPS disgorging any benefit it obtained back to the Qoin users.
2. However, as ASIC submits, the act of paying out the Qoin Tokens to members of the class action "cannot sensibly be described as remediation" because it was a commercial decision made by BPS in order to settle that legal proceeding.

1. BPS submits that it has retained essentially none of the profit that it generated in FY20 and FY21 as a result of paying out the Qoin Tokens to members of the class action to settle that proceeding.
2. However, BPS made a commercial decision to settle the class action, and the fact that this affected the amount of profit which it retained has no bearing upon the quantum of the appropriate penalty to be imposed.
3. BPS also submits that at no point did it receive any fees for its issue of Qoin Wallets or the facilitation of transactions between Qoin Wallet holders. This submission has been addressed above with the consequence that it is relevant to take into account the revenue derived by BPS from the sale of Qoin Tokens.

1. BPS submits that there is no need for specific deterrence in this case given:

(1) BPS is no longer involved in any of the activities which gave rise to the Unlicensed Conduct and there is no reason to expect that it will resume those activities;

(2) even if it did re-embark on those activities, it has consented to injunctions which would expose it to punishment for contempt in the event that it engaged in the same or similar conduct in the future;

(3) given the financial circumstances of both itself and its parent company, a penalty of any amount will be sufficient to ensure the potential costs of non-compliance cannot be regarded by BPS or its parent company as an acceptable cost of doing business; and

(4) the steps which BPS took to obtain advice about the relevant regulatory framework both before, and in the course of, embarking on the Qoin Project evidences a company that is genuinely concerned with ensuring compliance with the law - albeit one that has been found to have fallen short in those endeavours.

1. However, as ASIC submits, specific deterrence does have a role to play in this case because:

(1) although specific deterrence may be of minimal significance if a business has shut down, Mr Wiese wants BPS to continue operating. If it does, its continued operation will still be connected with the Qoin Project (i.e., the running of the Qoin Shop);

(2) the senior officers of BPS most closely involved in and responsible for contraventions continue to operate BPS and continue to have some ongoing involvement in the wider Qoin Project, which is a relevant factor.

1. As to general deterrence, it is important that any pecuniary penalty is more than what would be an acceptable "cost of doing business" if it is to deter potential contraveners "from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention": Singtel at [62]-[63].
2. BPS, although acknowledging that each case must turn on its own facts, drew comparisons to the size of corporate defendants and their multibillion dollar assets or turnovers in other cases, and submits that BPS is much smaller in comparison with the consequence that its peers of similar stature are likely to still view a total penalty of $600,000 against BPS as a general deterrent (which includes the penalty for the Misleading Conduct Case). It also submits that, in all the circumstances, the granting of injunctive relief and the ordering of corrective advertising, coupled with the widely publicised nature of the present case, are sufficient to achieve general deterrence and the protection of the public from similar conduct by others.
3. Whilst I accept the force of these arguments to some extent, I nonetheless consider that not imposing any penalty for the Unlicensed Conduct Case (being what BPS proposes), and only imposing a penalty of $600,000 for the Misleading Conduct Case, to be wholly inadequate as a general deterrent. That is because, as is apparent from the revenue generated by BPS from its unlicensed business, and the profits which it derived, a total penalty of $600,000 would likely be regarded as a cost of doing business by others in the cryptocurrency industry, and would be insufficient to deter such operators from contravening the Corporations Act or the ASIC Act.

1. Balancing all of the foregoing considerations and each party's submissions, I consider that the appropriate pecuniary penalty which BPS must pay the Commonwealth in respect of its contravention of s 911A of the Corporations Act is $2,000,000. This amount achieves the primary purpose of deterrence, but also takes account of the matters identified above which support a lesser penalty being imposed on BPS than might otherwise have been imposed, particularly its attempts to ensure compliance with the law (including through its consultation with ASIC), that it did not intend to contravene the law and BPS's acquiescence to other relief sought by ASIC, such as injunctive relief.
2. I am satisfied that, having regard to the totality principle, the total amount of pecuniary penalties payable by BPS of $2,000,000 is just and appropriate, taking into account the matters addressed in these reasons and the circumstances of this case as explored in detail in the Liability Judgment and the Appeal Judgment. For the same reasons, I am also satisfied that there is a reasonable relationship between the theoretical maximum penalty and the amount of $2,000,000.

The quantum of any penalty for the Misleading Conduct Case

1. The maximum penalty which can be imposed for a contravention of s 12DB of the ASIC Act is determined by reference to s 12GBCA(2) of the ASIC Act.
2. A separate contravention of s 12DB of the ASIC Act occurred on each occasion on which a person accessed the relevant page of the Qoin Website on which the representation appeared: Australian Securities and Investments Commission v La Trobe Financial Asset Management Ltd (2021) 158 ACSR 363; [2021] FCA 1417 at [90]-[91] (O'Bryan J).
3. A person who places a statement on a web server makes the representation conveyed by that statement when someone connects to the server and reproduces the statement on their own device: Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [12]-[20] (Beach J).
4. The analytics data which BPS produced to ASIC and which recorded the number of times each relevant subpage of the Qoin Website was visited between 7 June 2020 and 15 October 2022 is summarised in a table as follows:

1. Because there is a significant number of contraventions in relation to each category of representation, they should be grouped into a separate 'course of conduct' (Trade Representation, Merchant Growth Representation and Approval/Registration Representation). The parties accepted this.
2. ASIC submits that any penalty imposed should have regard to the fact that the misleading representations were made with an underlying purpose to promote the sale of Qoin Tokens, such that it is highly relevant to have regard to the revenues (or profits) derived by BPS during the same period as the representations were made. In this regard and as already addressed, the revenue derived by BPS from the sale of Qoin Tokens was significant and I am satisfied that the making of the contravening representations contributed to the overall benefit and revenue accrued to BPS by encouraging users to acquire Qoin Tokens.
3. ASIC accepts that it is not possible to assign an amount of BPS's revenue or profits accrued from any single contravention, such that a calculation under s 12GBCA(2)(b) of the benefit derived from each contravention cannot be made. ASIC also submits that a calculation based on BPS's annual turnover would not result in a maximum penalty higher than a penalty based on penalty units, such that s 12GBCA(2)(c) also does not apply. BPS agrees that neither s 12GBCA(2)(b) nor (c) is applicable in this case. I also agree.
4. However, on the basis that each view of the relevant subpage on the Qoin Website is a separate contravention, calculating a maximum penalty based on the value of 50,000 penalty units (or 20,000 penalty units where that figure was applicable at some points in time) per contravention would result in a maximum penalty of "many billions, if not trillions, of dollars". As ASIC submits, there is no meaningful maximum penalty in these circumstances.

Nature, extent and circumstances of the contravening conduct

1. These are addressed in detail in the Liability Judgment. Overall, the contravening representations were accessible on the Qoin Website or its promotional materials on its website for about, respectively, 22 months (Fiat Trade Representation), 42 months (Crypto Trade Representation), 12 months (Merchant Growth Representation) and 33 months (Approval / Registration Representation).

1. It is common ground that BPS has not previously been found by a Court to have engaged in similar misleading or deceptive conduct. Further, as BPS submits, neither Mr Wiese nor BPS had previously been the subject of investigations or findings of breach of any financial services laws and nor has Mr Wiese's own professional or personal conduct been the subject of investigations. This is a factor which supports a lesser penalty than might otherwise have been imposed.

1. ASIC submits (and BPS agrees) that there is no evidence about whether users who acquired Qoin Tokens did so in reliance on any one or more of the contravening representations, nor whether any users suffered losses as a result. However, ASIC submits that, in the absence of evidence to the contrary, an inference can be drawn that users relied upon the representations when deciding whether to acquire a Qoin Wallet or Qoin Token, because of the nature of the representations being to attempt to encourage that very action, citing Gould v Vaggelas (1985) 157 CLR 215 at 236-238 (Wilson J).
2. BPS does not challenge the drawing of an inference that the Qoin Website and White Paper, which were intended to encourage persons to acquire Qoin Wallets and trade in Qoin Tokens, likely had that effect on a fair proportion of Qoin users. However, BPS submits that it would be unsafe to infer, in the absence of evidence, that the contravening statements were specifically relied upon, or that they were determinative above any other statements on the Qoin Website or White Paper which may have induced users to purchase Qoin in any event. BPS highlights that the contravening representations were dispersed on various pages of the 32-page White Paper and across various subpages of the Qoin Website which, on ASIC's own evidence, not all viewers of the website saw.
3. On balance, I infer that at least some of the people who acquired a Qoin Wallet and traded in Qoin Tokens first saw the Qoin Website or promotional materials containing the contravening representations, and those who read the representations (the number of which cannot be known) would have been encouraged, at least in part by those representations, to proceed with the purchase. This is especially the case having regard to the nature of the representations themselves, which I consider would be regarded as identifying important features of the Qoin Facility.
4. Nonetheless, this consideration does not take the penalty assessment much further, because - and this is not disputed - there is no direct evidence that any person who relied upon the representations suffered losses as a result. As BPS submits, if there was any loss, it would be unquantifiable. This is a factor which tells against imposing a penalty in the amount sought by ASIC.

Whether contraventions deliberate or reckless

1. ASIC submits that the misleading representations were made deliberately and with the knowledge of senior management, and although BPS obtained limited legal advice about its compliance with financial services laws, that advice did not cover (and was not sought in relation to) the contents of its website and the lawfulness of the representations specifically. In ASIC's submission, the Trade Representations and the Approval / Registration Representations were made by BPS with reckless disregard of the meaning they would convey to an ordinary and reasonable reader, whereas the making of the Merchant Growth Representation was actuated by at least gross carelessness, as it was maintained for more than 12 months after it has become, to the knowledge of BPS, obviously untrue.
2. BPS denies that its conduct was reckless, and in any case stresses the distinction between objective recklessness, where an obvious risk of harm is not appreciated when engaging in conduct, and subjective recklessness, where the risk of harm is appreciated but the person proceeds with the conduct regardless, citing Firstmac at [45]. In the alternative, it submits that, at most, its conduct involved objective but not subjective recklessness.
3. BPS maintains that although the Court found that it had no objectively reasonable grounds for making the Trade Representations, there was no finding against the genuineness of Mr Wiese's subjective (albeit erroneous) belief that the representations were being made about future matters and that he had what he thought were reasonable grounds for making them. With respect to the Merchant Growth Representation, BPS submits that although it was found to be false or misleading, the margin of the decline in merchant numbers was small and non-linear, and the reason given for the representations remaining on the Qoin Website and in the White Paper even once they were untrue was one of inadvertence. Again, with respect to the Approval / Registration Representation, BPS submits that Mr Wiese's subjective understanding of what the representation conveyed was genuinely held, and although the Court found that, objectively viewed, the representations instead conveyed a misleading meaning, that does not suggest that Mr Wiese knew that the representations were untrue. Taken together, BPS submits that it did not intentionally or deliberately set out to mislead or deceive by way of any of the Trade, Merchant Growth or Approval / Registration Representations.
4. Whilst I accept that there was no finding in the Liability Judgment that the representations were made deliberately (that is, with actual knowledge that they were misleading) and nor was there a finding made that they were made with subjective recklessness, I accept ASIC's submission that they were actuated by objective recklessness, in that the representations were made without appreciation for the obvious risk of harm that people viewing them would be misled or deceived, based on an objective view of the meaning that the representations would convey to an ordinary and reasonable reader. In particular, as ASIC submits, the absence of an intention to mislead or deceive does not detract from the potential harm of the representations or from the need for general deterrence. I also accept ASIC's submission about the Merchant Growth Representation not being any less serious as a result of the margin of the decline in merchant numbers being slight. As I found at LJ [352], the decline was persistent and known to BPS, and the fact that the representation remained for 12 months, whether resulting from inadvertence or gross carelessness, is condemnable. Having said that, I do not regard the Merchant Growth Representation as warranting as high a penalty as the Trade Representation and the Approval / Registration Representations. Having regard to the breakdown of the penalty as proposed by the parties (below), they appear to agree with this.

Seniority of individuals responsible for contravention

1. ASIC submits that the representations were made deliberately and with the knowledge of senior management, in particular Mr Wiese, which elevates the seriousness of the contraventions, citing Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68; [2018] FCAFC 53 at [52] (Allsop CJ, Davies and Wigney JJ).
2. While BPS disputes that the conduct was deliberate, as mentioned above, it accepts that the contravening conduct was primarily the responsibility of its directors, in particular Mr Wiese.
3. As found above, the representations were made without appreciation for the obvious risk of harm that people viewing them would be misled or deceived, based on an objective view of the meaning that the representations would convey to an ordinary and reasonable reader. Such conduct is condemnable especially in light of the characteristics of the hypothetical ordinary or reasonable member of the audience to whom those representations were directed: LJ [255]-[262].

1. This matter is addressed above as part of the Unlicensed Conduct Case.

1. It is common ground that BPS did not seek legal advice in relation to the contravening representations before making them, and there is no evidence of any systems in place for compliance with the law in this regard.

1. This has been addressed above.
2. In addition, it is commendable that BPS removed all statements on the Qoin Website and from the White Paper associated with the Trade Representation and Merchant Growth Representation within nine days of receiving ASIC's pleadings on 24 October 2022 out of a desire to avoid compliance risks. While the Approval / Registration Representations remained at that time due to Mr Wiese's belief that ASIC's case in respect of it would not succeed, these were likewise removed on 6 May 2024, being the first business day after delivery of the Liability Judgment. Further, as noted in the Order of 22 May 2024, BPS undertook, as an interim measure, that it would not publish the contravening representations on the Qoin Website or in any promotional material accessible to the public until the Court granted final relief in these proceedings. Further, Mr Wiese gave unchallenged evidence that BPS ceased to issue Qoin Wallets following the publication of the Appeal Judgment on 30 May 2025. On or about 7 July 2025, BPS shut off access to the Qoin Wallet functionality within the Qoin Wallet App and it took down the website through which the contravening representations were published.
3. These facts show a degree of appreciation for the need to undertake corrective measures in light of proven contraventions, even before being compelled to do so by the Court. This is a matter which supports a lesser penalty than might otherwise have been imposed.

1. There is no evidence which enables an assessment to be made of the extent to which BPS derived a benefit from the contravening representations.

1. This has been addressed above and is further addressed below.

1. ASIC seeks orders that BPS pay to the Commonwealth pecuniary penalties totalling $19,000,000 for the Misleading Conduct Case. BPS submits that penalties totalling $600,000 would be appropriate. Their respective positions appear in this table:

1. BPS acknowledges that if I was to decide that the appropriate range of penalty required to achieve deterrence in this case was substantially higher than the $600,000 that it proposes - in the order of $10 million or more - then its capacity to pay, and the related issues of potential negative effects on third parties in the event of its liquidation, do not themselves warrant the imposition of a lower penalty. That is, it is common ground that those considerations must yield to the quantum of penalty required to achieve deterrence.
2. In my view, to impose a penalty upon BPS for the Misleading Representations in the amount of $600,000, being what it proposes, would not be capable of deterring contraveners from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention. However, the penalty proposed by ASIC of $19,000,000 is excessive and unnecessarily oppressive in all of the circumstances.
3. Balancing all of the foregoing considerations (including the number of views of the subpages on which the representations appeared, and the nature of the representations themselves) and each party's submissions, I consider that the appropriate pecuniary penalty BPS must pay the Commonwealth in respect of each contravention is as follows:

(1) Trade Representation: $4 million;

(2) Merchant Growth Representation: $2 million;

(3) Approval / Registration Representation: $6 million.

1. A cumulative pecuniary penalty of $12,000,000 for the Misleading Conduct Case strikes an appropriate balance between achieving the primary purpose of deterrence and ensuring that BPS is not sacrificed to the altar of public interest: see Web3 Ventures at [44]. That amount properly reflects the mitigating factors while also accounting for the objective recklessness of the conduct, involvement of senior management, the serious and misleading nature of the representations, the characteristics of the target audience and BPS's inadequate compliance systems.
2. I am satisfied that, having regard to the totality principle, the total penalty of $12,000,000 is just and appropriate, having regard to the matters addressed in these reasons and the circumstances of this case as explored in detail in the Liability Judgment.

1. ASIC seeks an order pursuant to ss 1101B(1)(a)(i) or 1324(1) of the Corporations Act restraining BPS from carrying on a financial services business in Australia without holding an AFSL for a period of 10 years. By way of reply, ASIC clarified that it is its intention that the injunction be confined to BPS carrying on a financial services business in contravention of s 911A for a period of 10 years, rather than carrying on a financial services business at all for a period of 10 years. BPS consents to the making of that order on the more limited basis.
2. The parties have also agreed a form of orders relevant to the Misleading Conduct Case.
3. In the circumstances and taking these matters into account, it is appropriate to grant injunctive relief in the terms proposed by the parties.

1. With respect to corrective advertising, ASIC also sought an order pursuant to ss 12GLA or 12GLB of the ASIC Act that within 14 days of the order of the Court on final relief, BPS be required to publish a notice in the form included in Annexure A to ASIC's draft orders (and in its submissions) on what ASIC termed the Qoin Website (which ASIC identified by the domain https://qoin.com) and in the Qoin Wallet App.
2. BPS consented to the corrective advertising orders originally sought by ASIC insofar as they concerned the Qoin Wallet App, but not to the extent that they required BPS to publish corrective advertising on a website which it does not own, operate or control. That is because, on or about 7 July 2025, BPS took down the Qoin Website, which is located at the domain (https://qoin.world): LJ [69]. Persons seeking to access this domain after 7 July 2025 were automatically redirected to a different website owned and operated by the Qoin Foundation (located at domain https://qoin.com) (the New Qoin Website).
3. Mr Wiese's evidence is that none of BPS, Mr Wiese or Mr Pathak are members or shareholders of Qoin Foundation; that none of Mr Wiese, Mr Pathak or any other current or former officer of BPS is a director of Qoin Foundation; that BPS has no general involvement in or control over the operations of Qoin Foundation; and that BPS is not able to compel it to take or refrain from taking any action other than voluntarily. Since BPS cannot publish or ensure the publication of the corrective advertising on the New Qoin Website, it is not appropriate that I make an order requiring BPS to do something which it cannot do.
4. In the end, the parties agreed to a form of order which requires BPS to request the Qoin Foundation to cause a copy of the corrective advertising to be published on the New Qoin Website, and to file and serve an affidavit attesting to compliance with this Order. Such an order is appropriate, although I have added one paragraph to the notice to define Unlicensed Conduct which was omitted from the draft provided by the parties, and made other minor changes.
5. The corrective advertising orders originally sought by ASIC insofar as they concerned the Qoin Wallet App will also be made.
6. I note that the text of the proposed corrective advertising refers to a media release of ASIC which I understand will be issued by ASIC following the delivery of this judgment. I will make the proposed order on the basis that ASIC will advise BPS of the date of and the hyperlink to the media release which it seeks be included in the corrective advertising to ensure that BPS displays the correct one.

1. ASIC submits that given it was substantially successful in the proceeding, including on appeal, and that costs should follow the event. On that basis, it submits that BPS should be ordered to pay ASIC's costs of the proceeding in full, including of the appeal and reserved costs.
2. In response, BPS submits that any costs order should take into account the fact that ASIC lost its case as to the Compliance Representation, as well as its case regarding the identity of the financial product in dispute, which was a significant factual issue at trial. It also submits that any costs order should take into account that the Full Court did not order BPS to pay ASIC's costs at first instance with respect to the PNI Period on which ASIC succeeded on appeal. BPS further submits that, pursuant to order 6 of the Orders made on 21 June 2023, ASIC was ordered to pay BPS's costs thrown away by amendments to its Statement of Claim, which costs should be offset against the costs which BPS is liable to pay to ASIC. With those considerations in mind, BPS submits that the appropriate costs order is that BPS pay 60% of ASIC's costs of the proceeding (excluding any costs of the appeal) on the standard basis, which costs should be offset against the costs which BPS is liable to pay to ASIC, to be assessed if not agreed.
3. ASIC submits that while some time, evidence, and written and oral submissions related to dealing with ASIC's case on the nature of the financial product which it lost, that does not justify 40% reduction of the costs awarded of both the liability and penalty aspects of the proceeding. In any case, ASIC submits that it is not appropriate to take a mathematical approach to costs on an issue-by-issue basis.
4. ASIC did, however, indicate that it consented to a set-off of costs thrown away by ASIC. I also consider that such an order is appropriate.
5. As is apparent from the Liability Judgment, a significant issue at the liability hearing was the nature and operation of the financial product, which was a result of the manner in which ASIC pleaded its case: see LJ [30]-[67]. This issue prolonged the length of the hearing and expanded the issues which needed to be addressed by BPS, including through its evidence. Further, ASIC failed in relation to its case concerning the Compliance Representation: LJ [398]-[407]. In the circumstances of this case, this deserves a minor reduction in the costs otherwise payable to ASIC in relation to the liability phase, although a broad brush approach will be adopted.
6. As for the penalty phase of the proceeding, there should be no discount. The case was hard fought by both sides and there is no basis to discount ASIC's costs for that phase.
7. As for the appeal, while accepting that the arguments which ASIC advanced on appeal were within the scope of the arguments it had made during the liability hearing, the Full Court nonetheless observed that these arguments "were certainly not ASIC's central focus before her Honour" and ASIC itself "acknowledged that its arguments on appeal were more refined and different to those advanced before the primary judge".
8. In these circumstances and considering ASIC's stated purpose of bringing the appeal as referred to in its media release, it is not appropriate that BPS should pay ASIC's costs of the liability hearing in relation to the appeal. That is especially as BPS did not participate in the appeal and the Full Court ordered that there be no order as to costs of the appeal other than that ASIC pay the costs of the amicus curae.
9. In summary, it is appropriate to order that, subject to the set-off referred to above, BPS pay 90% of ASIC's costs of the proceeding up to the date of the Liability Judgment, and that BPS pay ASIC's costs (with no discount) after that date. These costs will be assessed on the standard basis and will include reserved costs but will not include any costs of the appeal.

1. For these reasons, an appropriate total pecuniary penalty to be paid by BPS to the Commonwealth is the amount of $14,000,000. I have also determined it appropriate to order relief in the form of injunctions and corrective advertising substantially in the terms proposed by the parties, and to impose a slight discount on the costs order made in ASIC's favour and to refuse an order that BPS pay ASIC's costs of the appeal.

I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.