ASIC has commenced proceedings in the Federal Court against ACBF Funeral Plans Pty Ltd (ACBF Funeral Plans) and Youpla Group Pty Ltd (Youpla Group) for alleged contraventions of the ASIC Act.
ACBF Funeral Plans, a wholly owned subsidiary of Youpla Group, offered, promoted and sold the Aboriginal Community Funeral Plan (ACF Plan), a funeral expenses insurance policy, primarily to Aboriginal consumers. Plan holders of the ACF Plan pay fortnightly premiums for their nominees, such as their family members, to be covered for funeral related expenses up to the selected benefit amount. Plan holders make these regular premium payments to keep the cover on foot.
ASIC alleges that between 1 January 2015 and 30 November 2018:
- ACBF Funeral Plans engaged in misleading and deceptive conduct and made false and misleading representations, in offering, promoting and selling the ACF Plan in contravention of sections 12DA(1) and 12DB(1) of the ASIC Act; and
- Youpla Group was knowingly concerned in, or party to, the contravening conduct, in contravention of section 12GBA(1) of the ASIC Act.
ASIC claims that implied representations made by ACBF in marketing material and point of sale documentation were false. The representations include:
- ACBF Funeral Plans was owned or managed by an Aboriginal person or persons;
- the ACF Plan had Aboriginal community approval;
- the ACF Plan was more beneficial to Aboriginal consumers than other funeral insurance products generally available at the time; and
- plan holders would receive a lump sum payment of their chosen benefit amount, when in reality they would only be reimbursed for funeral related expenses up to the benefit amount upon production of proof that those expenses had been incurred.
ASIC is seeking declarations, injunctions to prevent further contraventions, civil penalties and adverse publicity orders.
The proceeding will be listed for directions on a date to be determined by the Court.
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Background
Youpla Group (then ACBF Group Holdings Pty Ltd) was the subject of a case study in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
Youpla Group provided two funeral related products in the 1990s and early 2000s – the Aboriginal Community Benefit Fund and the Aboriginal Community Benefit Fund No 2 - and, in 1999, was the subject of litigation commenced by ASIC in relation to misleading and deceptive conduct.
After further ASIC action in 2004, Youpla Group was prohibited from accepting new members into the Aboriginal Community Benefit Fund and the Aboriginal Community Benefit Fund No 2. In 2005, Youpla Group started to offer funeral expense insurance through the ACF Plan.
Before 1 April 2020, funeral expenses policies were exempt from regulation as a ‘financial product’ under the Corporations Act 2001 (Cth) (Corporations Act). In the Final Report of the Financial Services Royal Commission, Commissioner Hayne recommended the removal of this exemption.
On 28 November 2019, the exemption was repealed by the Treasury Laws Amendment (Financial Services Improved Consumer Protection) (Funeral Expenses Facilities) Regulations 2019.
From 1 April 2020, unlicensed funeral expenses facility providers are required to obtain an AFSL before they can issue new facilities (unless an exception applies).
On 29 April 2020, Youpla Group appeared before the House of Representatives Standing Committee on Economics and confirmed that they were applying to obtain an Australian financial services licence. ASIC does not comment publicly on whether a licence application has been lodged. ASIC will carefully consider all licence applications received in the usual way.
Plan holders of the ACF Plan who consider that they have suffered financial loss or who have other concerns regarding their policy may make a complaint to the Australian Financial Complaints Authority (AFCA). AFCA is an independent dispute resolution service providing free, fair and independent help with financial disputes and can be contacted on 1800 931 678.
ASIC’s Moneysmart website offers information for consumers about the options to pay for your funeral.
Editor's note:
On 5 February 2021, an Amended Statement of Claim was filed by ASIC.
Editor's note 2:
The case management hearing listed for 24 September 2021 has been vacated. The next case management hearing has been listed for 26 October 2021.
Editor's note 3:
The case management hearing listed for 26 October 2021 has been vacated. The next case management hearing is listed for 31 March 2022.
Editor's note 4:
On 11 March 2022 an external administrator was appointed to Youpla Group and a liquidator was appointed to ACBF Plan. The litigation has been stayed while ASIC considers whether it will make an application for leave to proceed against the defendants.
Editor's note 5:
The matter has been listed for a case management hearing on 16 June 2022 at which time ASIC is to indicate to the Court whether it seeks to discontinue the proceedings.
Further information on this matter can be found on the ASIC Youpla information page.
Editor's note 6:
ASIC’s application for leave to proceed against the defendants (in liquidation) will be filed by 14 July 2022 and heard on 22 July 2022.
Editor's note 7:
ASIC was granted leave to continue its proceeding against the defendants in liquidation by orders made by Justice Jagot on 15 July 2022. This is on the condition that ASIC not seek to enforce any pecuniary penalties or costs orders made in its favour without further leave of the Court.
The matter is now listed for a further case management hearing on 30 August 2022.
Editor's note 8:
The matter has been listed for a hearing on liability and penalty from 22 to 23 November 2022 at the Federal Court in Sydney.
Editor's note 9:
On 22 November 2022, the hearing on liability and penalty was heard. Judgment has been reserved.
Editor’s note 10:
On 5 September 2023, the Court handed down its judgment in relation to liability and penalty (23-244MR).
Editor's note 11:
On 3 October 2023, ASIC filed a Notice of Appeal in relation to the orders and judgment of his Honour Justice Goodman (23-267MR).