On 7 June 2019 ASIC commenced civil penalty proceedings in the Federal Court against R M Capital Pty Ltd (RM Capital) and its authorised representative, The SMSF Club Pty Ltd (SMSF Club), in relation to accepting conflicted remuneration.
ASIC alleges that SMSF Club advised its clients to set up self-managed superannuation funds (SMSFs) then use their SMSFs to buy real property marketed by a real estate agent, Positive RealEstate Pty Ltd (Positive RealEstate). ASIC asserts that SMSF Club had referral agreements with Positive RealEstate and that RM Capital was aware of this referral agreement.
ASIC contends that, from December 2013 to July 2016, each time an SMSF Club client used their SMSF to buy a property marketed by Positive RealEstate, Positive RealEstate paid around $5,000 to SMSF Club. At times, Positive RealEstate paid these amounts directly to SMSF Club, while at others it paid them to RM Capital who passed on the majority to SMSF Club.
ASIC alleges that SMSF Club accepted more than $730,000 in conflicted remuneration from Positive RealEstate.
ASIC’s case is that the payments could reasonably be expected to have influenced financial product advice given by SMSF Club to its clients, and so constituted banned conflicted remuneration under the Corporations Act.
ASIC also alleges that RM Capital was aware of the payments and did not take reasonable steps to stop the SMSF Club from accepting them. ASIC contends that as the authorising licensee for SMSF Club, RM Capital’s failure to take reasonable steps to ensure SMSF Club’s compliance also breached the law.
ASIC is seeking declarations of contravention, civil penalties and compliance orders against both RM Capital and SMSF Club.
This will be the first case concerning the alleged breach of conflicted remuneration provisions. ASIC will contend that SMSF Club and RM Capital contravened the Act on as many as 259 occasions each. Each contravention attracts a potential civil penalty of up to $1 million.
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Background
Pursuant to s963F of the Corporations Act, an Australian financial services licensee must take reasonable steps to ensure that its representatives do not accept conflicted remuneration. Conflicted remuneration is any benefit that could reasonably be expected to influence either the choice of financial product recommended by the licensee or representative or the financial product advice given by the licensee or representative to retail clients.
s963G of the Act prohibits authorised representatives of Australian financial services licensees from accepting conflicted remuneration.
Editor's note:
The matter has been listed for a case management hearing on 27 June 2019 in the Federal Court.
Editor's note 2:
The next case management hearing is listed for 20 February 2020.
Editor's note 3:
The case management date has been moved from 20 February 2020 to 19 March 2020, in the Federal Court.
Editor's note 4:
The case management date has been moved from 19 March 2020 to 2 April 2020, in the Federal Court.
Editor's note 5:
The next case management hearing is listed for 11 June 2020.
Editor's note 6:
The next case management hearing is listed for 09 July 2020.
Editor's note 7:
On 30 July 2020, at the case management hearing the Court ordered, amongst other things, that:-
- SMSF Club advise ASIC whether it will give discovery of certain documents by 14 August;
- if SMSF Club does not agree to this discovery, that ASIC file a discovery application by 21 August 2020;
- the parties file and serve a Statement of Agreed Facts by 20 August 2020;
- ASIC provide the defendants a second further amended concise statement by 10 September 2020;
- if the defendants do not consent to the filing of this second further amended concise statement, that ASIC file an amendment application by 24 September 2020; and
- the court-ordered mediation be re-convened at the first convenient date to the parties and the Court.
Editor's note 8:
On 12 July 2021, the proceedings between ASIC and The SMSF Club (the second defendant) were adjourned part-heard before Justice Jackson in the Federal Court in Perth to a date to be fixed
The next case management hearing between ASIC and RM Capital (the first defendant) is listed for 4 August 2021 with a liability hearing before Justice Jackson being listed in the Federal Court in Perth on 1-4 and 8-9 March 2022.
Editor's note 9:
The case management hearing scheduled for 4 August 2021 between ASIC and RM Capital (the first defendant) was vacated with Justice Jackson making orders by consent (setting out a pre-trial timetable) in chambers. The next case management hearing will be on 15 February 2022, ahead of the liability hearing between ASIC and RM Capital on 1-4 and 8-9 March 2022. Both hearings will be before Justice Jackson in the Federal Court in Perth.
Editor's note 10:
The liability hearing between ASIC and RM Capital took place on 1 and 2 March 2022 before Justice Jackson in the Federal Court in Perth.
Judgment has been reserved in both the proceeding between ASIC and SMSF Club, and the proceeding between ASIC and RM Capital.