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20-080MR ASIC commences proceedings against Mayfair 101 and Mayfair Platinum for misleading or deceptive advertising
ASIC has commenced proceedings in the Federal Court of Australia against companies in the Mayfair 101 group, alleging that its advertisements, promoted on Mayfair’s websites and in online media, are misleading or deceptive.
Mayfair Wealth Partners Pty Ltd, trading as Mayfair Platinum, and Online Investments Pty Ltd, trading as Mayfair 101, promote two debenture products to wholesale investors (Mayfair debenture products):
- M+ Fixed Income Notes, which are unsecured promissory notes issued by M101 Holdings Pty Ltd; and
- M Core Fixed Income Notes, which are secured promissory notes issued by M101 Nominees Pty Ltd.
Mayfair Platinum and Mayfair 101 use sponsored link internet advertising, through Google AdWords and Bing Ads, so the websites for the Mayfair debenture products appear as sponsored links when consumers search for “bank term deposit” or “term deposit” online. Mayfair’s promotional material also use words such as:
- “term deposit alternative”;
- “term investment” and “fixed term”;
- “certainty” and “confidence”; and
- “capital growth”.
ASIC alleges that Mayfair Platinum and Mayfair 101 made statements that were false, misleading or deceptive by representing that:
- Mayfair debenture products are comparable to bank terms deposits, and have a similar risk profile to bank term deposits, when they are debentures with a significantly higher risk profile;
- the principal investment will be repaid in full on maturity, when investors may not receive capital repayments on maturity or at all, and because Mayfair could elect to extend the time for repayment for an indefinite period;
- Mayfair debenture products were specifically designed for people seeking “certainty and confidence in their investments”, when investors may not receive interest and/or capital repayments, and could lose some, or all, of their investment; and
- Mayfair debenture products provide capital growth opportunities, when they do not.
ASIC is seeking injunctions to restrain the publication of statements of this kind, and pecuniary penalties in relation to the alleged false or misleading representations.
On 11 March 2020, Mayfair Platinum suspended payment of capital redemptions to investors in the Mayfair debenture products due to liquidity issues. In light of this, ASIC is also seeking an interim injunction to restrain the defendants from promoting and issuing the Mayfair debenture products while redemptions to existing investors remain suspended. ASIC’s application for an injunction will be heard by the Federal Court on 14 April 2020 at 9.30am.
A person qualifies as a wholesale investor if they:
- have over $2.5 million in net assets, or
- had a gross income over the past two years of $250,000 or more, or
- invest more than $500,000.
Offers of investments to wholesale investors do not require disclosure documents that provide information to investors about the risks of investing, and wholesale investors have limited protections under the Corporations Act 2001.
ASIC’s Moneysmart website has information on investing, including on debentures, secured notes and unsecured notes.
ASIC has established a dedicated webpage for Mayfair 101/Mayfair Platinum debenture product investors.
Consumers that have concerns about their dealings with the Mayfair 101 group can lodge a report of misconduct with ASIC.
The hearing of ASIC’s interlocutory application has been adjourned to
Thursday 16 April 2020 at 9.30am.
Editor's note 2:
The matter has been set down for a hearing commencing on 28 September 2020.
Editor's note 3:
On 9 September 2020, the Court ordered that the hearing listed to
commence on 28 September 2020 be vacated. The matter has been listed for a further case management hearing on 22 October 2020.
Editor's note 4:
On 22 October 2020, the matter was listed for a further case management hearing on 3 December 2020.
Editor's note 5:
On 13 August 2020, ASIC filed an Amended Originating Process and Amended Concise Statement. ASIC does not press the claim against the defendants in relation to the Capital Growth Representations, as referred to in paragraphs 4 and 7(d) of the Amended Originating Process.
Editor's note 6:
On 30 November 2020, the matter was listed for a case management hearing on 10 December 2020. The case management hearing listed for 3 December 2020 was vacated.
Editor's note 7:
On 10 December 2020, the matter was listed for trial commencing on 15 February 2021 for 2-3 days. The Court also ordered the parties to attend a mediation before a Registrar of the Court in January 2021.
Editor's note 8:
On 23 December 2020, the Court vacated the order made on 10 December 2020 requiring the parties to attend a mediation. The matter remains listed for trial, commencing on 15 February 2021.
Editor's note 9:
On 15 February 2021, ASIC filed a Further Amended Originating Process. The trial was heard by Justice Anderson on 15 February 2021. Judgment has been reserved.
Editor's note 10:
Judgment was delivered by the Court on 23 March 2021 (refer: 21-055MR). A penalty hearing will be listed on a date to be confirmed by the Court.
Editor's note 11:
On 26 March 2021, the matter was listed for a case management hearing on 6 April 2021.
Editor's note 12:
On 1 April 2021, the case management hearing listed for 6 April 2021 was vacated, and the Court instead made timetabling orders on the papers. The matter has been listed for a penalty hearing on 20 July 2021.
Editor's note 13:
On 30 June 2021, a case management hearing was held before Justice Anderson. The penalty hearing listed for 20 July 2021 was vacated and re-listed for 29 and 30 September 2021.
Editor's note 14:
On 22 December 2021, the Court delivered its judgment on penalty (21-364MR).