Frozen funds and assets of Brite Advisors – October 27, 2023
The Federal Court has set interim dates for ASIC to freeze the funds and assets of Australian Financial Services licensee Brite Advisors Pty Ltd (Brite) after concerns about:
- failing to provide the current financial position of the company as Brite did not lodge its financial statements and auditors report for the financial year ended 30 June 30, 2022; and
- not reporting any funds under Brite’s management by the entities within the Brite Group in an audited balance sheet since December 2019.
Justice Banks-Smith has ordered Brite be restrained from, among other things:
- removing property from Australia;
- diminishing the value of any of its property;
- incurring new liabilities; and
- withdrawing or transferring any monies from accounts with any financial institution where Brite has any legal or equitable interest.
Construction services directors disqualified – October 24, 2023
Anthony Murray and his son, Danny Luke Murray, have both been disqualified from managing corporations for four years after their involvement in the two failed companies MKD Custom Stainless & Design Pty Ltd (MKD) and Site Engineering Solutions Pty Ltd (SES).
Anthony Murray was a director of both companies between 2007 – 2019, and Danny Luke Murray was a director of SES and another failed company, Custom Stainless and Design Pty Ltd, between 2014 – 2019.
According to ASIC, both failed to ensure that the companies kept adequate business records, and Anthony Murray also allowed SES to trade while insolvent, while Danny Murray allowed SES to incur debts that the company could not to pay.
Both were also involved in illegal phoenix activity when assets were transferred from another unrelated company, Dr McCool Pty Ltd, to CSD and later to MKD, leaving the previous company without the funds to pay debts.
In total, the three companies owe A$1.6m ($1m), including a total of A$748,000 ($476,113) to the Australian Taxation Office.
Licence suspended for Celtic Equities Management – October 23, 2023
The Australian Financial Services (AFS) licence has been suspended for Celtic Equities Management Pty Ltd for six months. During surveillance, ASIC found that the financial services provider failed to:
- lodge financial statements and audit report for the financial years ended June 30, 2017 to June 30, 2022; and
- pay outstanding ASIC Industry Funding Levies, and outstanding late payment penalties.
Former PwC partner banned for eight years – October 20, 2023
The former PwC Australia partner Peter-John Collins has been banned for eight years from providing financial services or controlling an entity that carries on a financial services business.
Collins, who was an authorized representative of Australian financial services licensee PricewaterhouseCoopers Securities Limited between March 2004 – July 2006, and December 2013 – October 2022, was found disclosing confidential information he obtained as a tax adviser to the Commonwealth Treasury and the Australian Board of Taxation.
ASIC news weeks 42-43
Administrative decisions and court orders
The Administrative Appeals Tribunal (AAT) has set aside the Commission’s orders to ban the founder of DG Institute Pty Ltd, Dominique Grubisa, from engaging in credit activities and financial services.
Grubisa was previously banned for four years for claiming to hold Australian financial services and credit licences when she did not. She was also found not fit and proper to engage in financial services or credit activities.
AAT Deputy President Bernard J McCabe said: “I do not see how a banning order made pursuant to the Corporations Act or the NCCP Act will further a legitimate regulatory interest. In reaching that conclusion, I do not mean to excuse the applicant’s problematic behaviour that has been uncovered through ASIC’s diligent investigations. But the issues she presents are issues for a different decision-maker.”
Diversa Trustees Limited (Diversa), a superannuation trustee, has been found by the court not breaching the law, and did not fail to take ensure that its representatives complied with financial services laws.
Earlier, ASIC alleged that the company breached the law by allowing Australian Super Finder, the Australian Dealer Group, and financial adviser Nizi Bhandari, to sign customers to its YourChoice Super product between March 13, 2019 and December 18, 2020.
According to ASIC, Diversa and the OneVue Group both ‘knew or should have known’ that the Australian Super Finder was involved in concerning behaviour and at risk of breaking the law. Alledgedly, OneVue Group also paid about A$7.5m ($4.8m) in commissions on behalf of Diversa.
In 2021, Bhandari was permanently banned from providing financial services and engaging in credit activities after acting dishonestly while serving customers with their superannuation and obtaining hardship payments.
In a statement, ASIC announced that 100 individuals were prosecuted for failing to assist registered liquidators between January 1, 2023 and June 30, 2023. The prosecutions included failures to comply with key obligations to provide registered liquidators with access to company books, and failures to submit reports activities and property after a company was placed in external administration.
ASIC Deputy Chair Sarah Court said: “During this period, ASIC successfully prosecuted 100 individuals for 194 offences under the Corporations Act for failing to assist liquidators and they were fined more than A$430,000 ($273,618).”
On October 26, Acting ASIC Chair Sarah Court spoke at the Supplementary Budget Estimates 2023/2024.
She talked about the Commission’s ‘strong enforcement outcomes’ – its work has resulted in 35 criminal convictions and almost A$190m ($120m) in civil penalties and fines in the last fiscal year. Figures also showed an increase in financial services and credit bannings, including summary prosecutions. Over 130 new investigations were started during the period – an increase from 107 the year before.
Court highlighted some of ASIC’s most prominent enforcement actions, such as one where the Commission won a landmark case against ANZ over breaching continuous disclosure laws when it undertook a A$2.5 billion ($1.6 billion) institutional share placement in 2015 and did not disclose that underwriters had acquired around a third of the shares.
In June, ASIC also called on general insurers to repay A$815m ($544m) for broken pricing promises that affected over 5.6 million customers.
“We set ambitious priorities and have made significant progress on each of them,” Court said.
On October 18, Greg Yanco, Executive Director for Regulation and Supervision, gave a regulatory update at the 33rd Annual Credit Law Conference. He said that the Commission is sharpening its focus to protect financially vulnerable consumers, especially those in financial hardship. ASIC will also take actions to ensure compliance with consumer protections, and to address poor practices and misconduct across the credit sector.
Design and Distribution Obligations is another critical point. ASIC has expanded its focus to include ‘credit-like’ products, and says that lenders can expect further scrutiny too.
ASIC and APRA have released the public notes on the fifth Superannuation CEO Roundtable from September 27, 2023. The event focused on sustainable finance disclosures and the Retirement Income Covenant.
It was hosted by ASIC Senior Executive Leader Jane Eccleston and APRA Deputy Chair Margaret Cole, and 10 superannuation trustee CEOs and executives attended the roundtable.
ASIC has signed the International Association of Insurance Supervisors Multilateral Memorandum of Understanding – an international supervisor cooperation and information exchange agreement.
The memorandum provides a global framework of compliance and confidentiality around which insurance supervisors can cooperate.
Amendments have been made to the ASIC Corporations and Credit (Amendment) Instrument 2023/589, which modifies licensees’ obligations under the reportable situations regime. Now, licensees do not have to to report certain breaches of the misleading and deceptive conduct provisions, nor the false and misleading representations provision. Licensees have also now up to 90 days, instead of 30, to lodge reports with ASIC.