ASIC has commenced civil penalty proceedings in the Federal Court against five former directors and officers of the Youpla Group (formerly Aboriginal Community Benefit Fund) for breaches of their duties.
The Youpla Group operated several funds providing funeral insurance, mostly marketed to indigenous Australians.
ASIC Deputy Chair Sarah Court said, ‘ASIC’s case seeks to hold to account those involved in the alleged governance failures and director misconduct that impacted the First Nations people who were members of the Funds.’
ASIC’s case includes claims against Youpla Group directors and officers between September 2017 and November 2018, being directors Ronald Joseph Pattenden, Jonathan Glen Law, Michael Brendan Wilson, Bryn Elwyn Jones (CEO) and Geoffrey Peter Clayton (COO).
ASIC alleges the directors and officers maintained insurance arrangements with Crown Insurance Services Limited (Crown), a Vanuatu-based company beneficially owned and controlled by Mr Pattenden and Mr Law. ASIC alleges those arrangements were not in the interests of the Aboriginal Community Benefit Fund Entities (ACBF Entities) and stood to benefit Pattenden and Law.
ASIC further alleges that insuring with Crown left the ACBF Entities vulnerable to unaffordable premium increases (as occurred to ACBF 2 in September 2017). First Nations people continued to make premium payments to ACBF unaware of the risks to the viability of the funds and their ability to meet their commitments to members.
‘First Nations people took up policies with ACBF to ensure their family members had cover for their funeral expenses. ASIC alleges the defendants maintained the arrangement with Crown which moved funds into an overseas company owned and controlled by two of the directors and did not act in the best interest of the ACBF Entities and members.
‘The payments to Crown impacted the viability of the ACBF Entities and put at risk their ability to meet their commitments to members.
‘Directors and officers must comply with their obligations, particularly when it comes to conflicts of interest,’ concluded Ms Court.
ASIC is seeking declarations of contraventions of s180, s181 and s182 of the Corporations Act, pecuniary penalty orders and orders disqualifying the defendants from managing corporations.
The first case management hearing is listed for 7 September 2023.
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Background
In a separate proceeding, ASIC alleged ACBF caused substantial harm to First Nations people by falsely representing that it was owned or managed by Aboriginal persons and that its funeral insurance was approved by the First Nations community (20-262MR).
The three ACBF companies relevant to today’s proceedings were Aboriginal Community Benefit Fund No 2 Pty Ltd (ACBF 2), ACBF Funeral Plans Pty Ltd and Community Funeral Plans Pty Ltd (ABCF Entities).
ASIC has information on the Youpla Group and ACBF, including information on Government payments, making a complaint and ASIC court action.
The Youpla Funeral Benefits Program looks to help the families of Fund members affected by the collapse.
In October 2020, ASIC commenced proceedings in the Federal Court against ACBF Funeral Plans Pty Ltd and Youpla Group Pty Ltd for alleged misleading and deceptive conduct. The judgment has been reserved (20-262MR).
In December 2022, ASIC took action to preserve the property of former ACBF director, Bryn Jones (22-372MR).
Breaches of director’s duties can attract a maximum penalty of $200,000 for each breach that occurred in the period 2017 to 12 March 2019.
Editor's Note 1:
The matter has been listed for a case management hearing on 30 April 2024 in the Federal Court.
Editor's Note 2:
On 30 April 2024, further case management directions were made and the matter was listed for a case management hearing in the week commencing 2 September 2024.
Editor's Note 3:
On 23 October 2024, the Court listed the matter for trial to commence on 9 February 2026.