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17-236MR Huntley Management Ltd ordered to pay penalty for false and misleading advertising
The Federal Court of Australia has ordered Huntley Management Limited (Huntley) to pay a penalty of $50,000 for false and misleading advertising that its investment projects were 'approved by the Australian Securities and Investments Commission'. Huntley made the statements on its website between 21 September 2010 and 7 October 2015 and in two advertisements in a national newspaper on 25 November 2014 and 11 February 2015.
Huntley, which is a responsible entity of various managed investment schemes, admitted that the statements were false and misleading. It also consented to, and the Federal Court made two declarations of, contraventions of section 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and additional orders requiring Huntley to:
- Post notices on the website about the statements being misleading; and
- Pay ASIC's litigation costs.
In his judgment, His Honour Justice Perram found that the statements about 'approved' investment projects were false and misleading because:
'Huntley's projects had not been approved by ASIC. It was true that the schemes were registered with ASIC but….I do not think that this is remotely what the word 'approved' conveys.'
ASIC encourages financial services providers to regularly review their website content and consider ASIC's guidance on promoting financial products and advice services in Regulatory Guide 234 Advertising financial products and advice services including credit: Good practice guidance. (Ref: RG 234).
On 6 October 2015, ASIC issued two infringement notices to Huntley in respect of the advertisements including statements about 'approved' investment projects. Huntley failed to pay the penalties of $10,200 specified in each infringement notice.
Following Huntley's failure to pay the infringement notices, ASIC conducted further investigations and subsequently, on 23 September 2016, ASIC issued civil penalty proceedings in the Federal Court of Australia.
ASIC may issue an infringement notice pursuant to section 12GXA of the ASIC Act if it believes that the consumer protection provisions of the ASIC Act have been contravened. A person who receives an infringement notice is not obliged to pay the penalty in the notice.
A copy of the judgment can be found here.