ASIC has made an interim stop order preventing Fawkner Property Ltd (Fawkner) from issuing or transferring interests in Private Property Trust No. 20 (marketed as Essential Services Trust No. 20) (the Fund), because of misleading or deceptive statements in the Fund’s marketing and disclosure.  Fawkner is the responsible entity of the Fund.

The order stops Fawkner from offering, issuing, selling or transferring interests in the Fund based on existing product disclosure statements (PDS).  The order is valid for 21 days unless revoked earlier.

ASIC considers that Fawkner misrepresented the performance risks of the fund in its marketing by:

• not adequately explaining how forecasted returns were calculated;
• not providing adequate warnings that the forecasted performance may not be achieved;
• using the term ‘Covid-proof’;
• inappropriately comparing the Fund to lower risk investments, benchmarks and indices; and
• using outdated performance numbers.

ASIC identified the misleading or deceptive statements in advertisements for the Fund, including Fawkner’s website, and the PDS during a recent surveillance. 

ASIC may consider further regulatory action in relation to the Fund and Fawkner. 

Background

The interim stop order against Fawkner is a result of ASIC’s ongoing surveillance to identify the use of misleading performance and risk representations in marketing by managed funds (22-061MR).  ASIC recently issued stop orders against Responsible Entity Services Limited for misleading or deceptive representations in advertising (22-188MR) and breaches of the design and distribution obligations (22-194MR) that were identified during this surveillance.

ASIC’s Regulatory Guide 234 Advertising financial products and services (including credit): Good practice guidance (RG 234) assists fund managers and others in the industry to comply with their legal obligations not to make false or misleading statements or engage in misleading or deceptive conduct.

ASIC’s Regulatory Guide 168 Disclosure: Product Disclosure Statements (and other disclosure obligations) (RG 168) sets out guidance to product issuers on preparing compliant disclosure documents that promote product understanding and comparison.  Promoters of managed funds should ensure they are familiar with the principles and guidance set out in RG 234 and RG168.

Editor’s note:

Following a hearing on 11 August 2022, ASIC made a further interim stop order against Fawkner prohibiting the conduct covered by the initial order until 31 August 2022. On 16 August 2022, ASIC made a final stop order prohibiting Fawkner from offering, issuing, selling or transferring interests in the Fund under the PDS dated 11 March 2022 and the Supplementary PDS dated 2 May 2022.