Australia: Superannuation, Funds Management and Financial Services - What's News - 14 June 2016

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:

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.

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