A drawn-out class action against the digital currency Qoin may soon reach a close, with those alleging misleading conduct required to pay security for court costs as a condition of continuing their claim.
Federal Court Justice Rodger Derrington has ordered the class action's lead applicants Its Eco Pty Ltd and Bethany Joy McManus to provide $750,000 to the court in security for the legal fees of the entities behind Qoin by Friday afternoon.
Those costs will be held by the court and paid if the class action goes to trial but does not succeed.
The class action, which is represented by Salerno Law, alleges that the entities behind Qoin have engaged in misleading or deceptive or unconscionable conduct under Australian Consumer Law, the Australian Securities and Investments Commission Act 2001 and the Corporations Act.
According to Federal Court documents, the lead applicant's statement of claim alleges:
"Inconsistently with the representations, Qoin was not a liquid cryptocurrency in that it was difficult or impossible to exchange for fiat (government-issued) currency or for goods and services," the documents read.
"Or, at least, it developed those characteristics from March 2021."
BPS Financial Services — one of the respondents in the class action — has previously denied the allegations.
What is Qoin?
Based on the Gold Coast, Qoin has been bought and sold exclusively on Block Trade Exchange (BTX) for Australian dollars or used to purchase goods and services.
Both Qoin and BTX are owned by BPS Financial Limited.
In March last year, BTX capped sales to $125 worth of Qoin per account, per day.
The 24-hour volume of Qoin being sold on BTX has dropped from a high of $700,000 in early 2021 to $1,000 this week.
Basis for action
In a written decision that determined whether the class action should provide the security costs, Justice Derrington stated its members alleged that they were "induced by certain express and implied misrepresentation to acquire or invest" in Qoin.
In dealing with respondents' submissions that the value of Qoin had increased over time, Justice Derrington stated there was a "real question" over the liquidity of Qoin, with no evidence presented that the applicants had been able to sell or convert their Qoin to fiat after March 2021.
Although, he said there was some evidence of daily sales of $1,000.
"Whilst some small sales have been identified, there was no evidence that if Its Eco sought to sell its current holdings there would be willing buyers for it at the identified prices," Justice Derrington wrote.
The Federal Court heard the class action members had a combined $4.3 million investment in Qoin, but that their alleged losses had not been calculated.
Justice Derrington stated there was a "persuasive onus" on the class action applicants to demonstrate "at least to some degree" that they had suffered a loss.
He has stated that without demonstrating an alleged loss, it "indicates that the Court cannot reach the conclusion that the lead applicants have a strong case".
Uncertainty over security costs
Justice Derrington ordered that the security costs be provided because "the action is pursued for the benefit of an apparently large number of persons who stand to gain from its success … but whom are not protected from an adverse costs order and not shown to be without means".
"Conversely, the respondents who are at risk of a substantial costs order in the proceedings have no opportunity to recover costs if the claim is unsuccessful," he said.
Justice Derrington noted that the two lead applicants appeared unable to afford the security costs.
"Its Eco has a deficiency of assets over liabilities and no retained profits such that, if the action were unsuccessful, it is clear that it would not be in a position to meet any of the respondents' claims for costs," he wrote.
"Ms McManus has deposed to her financial standing, which discloses that she would also be unable to meet any adverse costs order were the action to be unsuccessful."
While Justice Derrington has stated that "no such funder has emerged to underwrite the action and there is no evidence that any will be forthcoming", he has also noted that did not indicate the class action's claims had no substance.
