In the media – National
ASIC takes first action against licensee for alleged
breached of 'best interests duty'
ASIC – 8 June 2016 – ASIC has commenced proceedings
against NSG Services Pty Ltd (formerly National Sterling Group Pty
Ltd) (NSG) for breaches of the 'best interests
duty' introduced under the 'Future of Financial Advice'
(FOFA) reforms. This is the first civil penalty
action ASIC has taken against a licensee alleging breaches of the
best interests duty and is seeking declarations of breaches and
financial penalties.
More...
ASIC bans former ANZ financial adviser
ASIC – 8 June 2016 – ASIC has banned Wayne Meadth from
providing financial services for one year after he was found to not
be adequately trained or competent to provide financial services.
More...
ASIC consultation: regulatory sandbox licensing
exemption
ASIC – 8 June 2016 – ASIC has identified some barriers
faced by new financial technology (fintech) businesses seeking to
enter the financial services market. These barriers include speed
to market and meeting the organisational competence requirements of
a licensee. ASIC encourages members of the financial services and
fintech industry and consumers to make a submission on the
consultation paper. The closing date for submissions on CP 260 is
Friday 22 July 2016.
More...
ASIC ban upheld, investment banker jailed
MEDIA – 6 June 2016 – The Administrative Appeals Tribunal (AAT) has upheld ASIC's decision to ban a financial adviser from providing financial services for five years. More...
More winners than losers in super budget measures:
ASFA
MEDIA – 3 June 2016 – More Australians will benefit
from the new superannuation measures announced in the Budget than
be negatively affected by them, according to Association of
Superannuation Funds of Australia figures. More...
AIST takes aim at levies consultation
MEDIA – 3 June 2016 – The Australian Institute of
Superannuation Trustees has labelled Treasury's consultation
paper on proposed financial institutions supervisory levies as
insufficient and non-compliant with government guidelines. More...
Independent tribunal upholds financial adviser banning
by ASIC
ASIC – 3 June 2016 – The AAT has affirmed ASIC's
decision to ban a financial adviser, Alfie Chong, from providing
financial services for five years. According to the AAT's
decision, Mr Chong's conduct "involved repeated/systemic
compliance failures" and he "repeatedly tried to shift
the blame for his own failure to comply with the Corporations
Law" to his licensee, Meritum Financial Group.
More...
More capital for high growth businesses a win for
investors and the economy
AVCAL – 2 June 2016 – Increasing the pool of capital
available for investment in startups and high growth businesses
will help lift economic and jobs growth, as well as generate strong
returns for superannuation funds and other investors, according to
the Australian Private Equity and Venture Capital Association
Limited (AVCAL).
More...
ASIC bans former director and in-house counsel of
Provident Capital
ASIC – 2 June 2016 – ASIC has banned Malcolm Philip
Bersten of Turramurra, NSW, from managing corporations and
providing financial services for five years. The ban follows an
ASIC investigation which found Mr Bersten breached his duties as a
director and failed to comply with financial services laws.
More...
AIST Submission – Proposed Financial Institutions
Supervisory Levies for2016-17
AIST – 2 June 2016 – While AIST welcomes consultation
on proposed financial levies for 2016-2017, AIST is once again
concerned that insufficient detail renders the proposal as
non-compliant with the Government's Cost Recovery Guidelines
and Charging Framework.
More...
AIST Submission – AUSTRAC Industry Contribution
2016-17
AIST – 2 June 2016 – AIST seeks clarification firstly
as to the basis for excluding the AUSTRAC Industry Contribution
from the requirements of the Government's Cost Recovery
Guidelines.
More...
ASFA Statement: Individuals affected by superannuation
budget measures
ASFA – 2 June 2016 - The Association of Superannuation Funds
of Australia (ASFA) acknowledges the ongoing
interest in the number of people potentially impacted by the
superannuation measures announced in the May 2016 Budget and has
prepared a consolidated set of figures that outlines the revenue
impacts and estimated number of people affected by each of the
measures. More...
ASIC consulting over managed investment
schemes
MEDIA – 1 June 2016 – The Australian Securities and
Investments Commission is proposing to remake its class order on
differential fees for registered managed investment schemes,
extending it beyond a 2017 expiration. More...
ASIC cancels AFSL of wholesale fund
manager
MEDIA – 1 June 2016 – ASIC has cancelled the
Australian financial services (AFS) licence of a
Sydney based wholesale service provider. More...
ASFA recognises super challenge for PC
MEDIA – 1 June 2016 – The Association of
Superannuation Funds of Australia has acknowledged the Productivity
Commission's challenging task in measuring the competitiveness
and efficiency of a complex and heterogeneous system and its wider
industry. More...
ASIC cancels licence of AFS wholesale service
provider
ASIC – 1 June 2016 – ASIC has cancelled the Australian
financial services (AFS) licence of TMK Index
Limited (AFS Licence No 314823) for failing to comply with a number
of key obligations, including requirements around the lodgment of
accounts, breach notifications, meeting Net Tangible Asset
requirements and maintaining adequate, competent staffing
arrangements.
More...
LISTO could delay entitlements: KPMG
MEDIA – 1 June 2016 – The federal government's
proposed transition to a low-income superannuation tax offset
(LISTO) could delay the provision of offset
entitlements to superannuation fund members, according to KPMG.
More...
ASFA Submissions
ASFA – June 2016 – Submissions to:
- Supplementary Submission to the Productivity Commission's Study into Superannuation Efficiency and Competitiveness.
- Submission to The Treasury in relation to Consultation Paper: Proposed financial institutions supervisory levies for 2016-17. More (AFSA Submission download - Detailed)... More (AFSA Submission download - Summary)...
Super cap 'administratively clumsy':
KPMG
MEDIA – 31 May 2016 – The government's proposed
$1.6 million cap on superannuation pension accounts must include a
"buffer" in order to be practicable, warns KPMG.
More...
Self-employed lagging behind in saving for
retirement
ASFA – 31 May 2016 – The Association of Superannuation
Funds of Australia (ASFA) is urging those who are
self-employed to plan for their retirement, with recent research
finding that almost one quarter of self-employed people do not have
superannuation. More...
ASIC Report 478: Overview of licensing and professional
registration applications: July to December 2015
ASIC – 31 May 2016 – The report sets out recent
regulatory outcomes achieved by ASIC in relation to Australian
financial services (AFS) applications, Australian
credit licence applications, liquidator registration applications,
company auditor and approved SMSF auditor registration
applications.
More...
ASIC permanently bans ex-HSBC, ANZ
planners
MEDIA – 30 May 2016 – ASIC has permanently banned two
financial advisers, one from HSBC and the other from ANZ. More...
ASIC consultation: ASIC class order on managed
investment schemes
ASIC – 30 May 2016 – ASIC has released a consultation
paper proposing to repeal Class Order [CO 02/226] - Managed
investment schemes – no issue required disclosure that
is due to expire ('sunset') in 2017. Consultation Paper 259
Repealing ASIC class order on managed investment schemes: No
issue required disclosure (
CP 259) outlines the class order to be repealed and our
rationale for repealing it. Submissions on CP 259 are due on 27
June 2016.
More...
Cases
Chong and Australian Securities and Investments Commission
[2016] AATA 338
CORPORATIONS – decision by Australian Securities and
Investments Commission to make banning order prohibiting applicant
from providing "financial services" for five years
– whether power to impose a banning order enlivened –
whether banning order should be imposed in the applicant's case
– period of banning order – decision under review
affirmed.
Bideena Pty Ltd as trustee for the Bideena Pty Ltd
Superannuation Fund [2016] NSWSC 735
TRUSTS – JUDICIAL ADVICE – Entitlement of Trustee to
indemnity out of trust property for costs for litigation –
Whether judicial advice a condition for right of indemnity.
Reynolds
v Sunsuper Pty Ltd & Anor [2016] QDC
129
Insurance – Superannuation policy – Whether member
entitled to TPD benefit – Not in dispute that Court to decide
entitlement in this proceeding.
Timbercorp Finance Pty Ltd v Collins and Tomes [2016] VSCA
128
PRACTICE AND PROCEDURE – Part 4A of the Supreme Court
Act 1986 – Managed investment schemes – Collapse
of schemes – Group proceeding on behalf of investors in
schemes – Defendants include lender to investors –
Dismissal of group proceeding – Opt out provisions –
Subsequent recovery proceedings by lender against group members
– Group members had not opted out of group proceeding –
Group members raised individual claims and defences in recovery
proceedings – Whether failure to opt out of group proceeding
precluded group members from raising individual claims and defences
in recovery proceedings.
STATUTORY INTERPRETATION – Group proceedings – s 33Q
of the Supreme Court Act 1986 – Whether group
members entitled to participate in group proceeding – Whether
group members can raise questions not common to group proceedings
– Whether failure to raise questions not common in group
proceeding precludes group members from raising those questions in
subsequent proceedings.
PRACTICE AND PROCEDURE – Group proceedings – Anshun
estoppel – Test – Whether unreasonable of group members
not to have raised individual claims and defences during group
proceeding – Whether group members estopped from raising
individual claims and defences in subsequent proceedings by reason
of failure to raise individual claims and defences in the group
proceeding – Port of Melbourne Authority v Anshun Pty
Ltd [1981] HCA 45; (1981) 147 CLR 589.
PRACTICE AND PROCEDURE – Estoppel – Anshun estoppel
– Scope of principle – Whether Anshun estoppel may
preclude a person who was neither a party nor a privy of a party in
an earlier case – Whether unreasonable not to have raised
cause of action in earlier proceeding – Relevant factors
– Content of opt out notice in group proceedings –
Whether respondents estopped from raising matters in subsequent
proceedings.
PRACTICE AND PROCEDURE – Estoppel – Anshun estoppel
– Privity of interest – Parties and their privies
– Whether group members privies of plaintiff in initial group
proceeding – Whether plaintiff in group proceeding would be
precluded from raising claims and defences of individual group
members in subsequent proceedings.
PRACTICE AND PROCEDURE – Group proceedings – Abuse of
process – Failure of plaintiff or group members to raise
individual claims in group proceeding – Whether raising
individual claims and defences by group members in subsequent
proceedings is oppressive or brings administration of justice into
disrepute.
Legislation – Commonwealth
ASIC
Corporations (Repeal) Instrument 2016/452
This instrument repeals ASIC Class Order [CO 03/606] consequent
upon the making of the ASIC Corporations (Financial Product Advice
- Exempt Documents) Instrument 2016/356. Registered: 7 June
2016.
ASIC
Corporations (Financial Produce Advice – Exempt Documents)
Instrument 2016/356
This instrument exempts persons from the requirement to hold and
Australian financial services licence in respect of an exempt
document or statement for the purposes of Regulation 7.1.08(3) of
the Corporations Regulations 2001. Registered: 6 June
2016.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.