The Full Court has upheld ASIC’s appeal in its case against ACBF Funeral Plans Pty Ltd (ACBF) and Youpla Group Pty Ltd (Youpla), finding that funeral expenses insurance provider ACBF misrepresented to Aboriginal consumers that it was Aboriginal owned or managed when that was not the case.
ASIC Deputy Chair Sarah Court said: ‘ASIC brought this case in 2020 after consulting with First Nations advocate groups and because of the harm that we believed the ACBF and Youpla business had caused to Aboriginal peoples. Today’s decision provides some formal acknowledgment of that harm and will be a deterrent to anyone who tries to mislead Aboriginal consumers about whether a business is Aboriginal owned or managed.’
The Appeal Court’s decision today found that the evidence before the trial judge was sufficient to prove that in the period 1 January 2015 to 30 November 2018, ACBF did not have Aboriginal ownership or management. In particular, the Court found that, on the evidence, it is ‘abundantly clear ... that the Aboriginal Ownership/Management Representation is false.’
The Full Court’s decision overturns part of an earlier Federal Court decision which found that while ACBF had represented that it was Aboriginal owned and managed, ASIC had failed to prove that this representation was false.
The proceeding will now be remitted to the trial judge to determine the appropriate penalty.
Background to the proceedings
ACBF, a wholly owned subsidiary of Youpla, offered, promoted and sold the ACF Plan, a funeral expenses insurance policy, primarily to Aboriginal consumers. ACBF customers who purchased the ACF Plan paid fortnightly premiums so that their nominees, such as their family members, would be covered for funeral related expenses up to a selected benefit amount.
Youpla (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.
In the proceedings it filed in October 2020, ASIC alleged four misrepresentations by ACBF and involvement in those misrepresentations by Youpla, which were that:
- ACBF 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.
On 5 September 2023, judgment was delivered in which ACBF was found to have made false and misleading representations in relation to the fourth representation only. The judge imposed a $1.2million pecuniary penalty on ACBF (which ASIC is not to enforce without leave of the Court). ASIC’s remaining allegations, including the ‘involvement’ allegation against Youpla, were dismissed.
Today’s decision of the Full Court means that ASIC has succeeded in relation to the first misrepresentation also.
ASIC did not appeal the Court’s findings in relation to the remaining two representations or the Court’s findings in relation to Youpla.
On 11 March and 27 April 2022 respectively, ACBF and Youpla went into liquidation. ASIC sought and obtained leave to continue the proceedings because of the importance of general deterrence in relation to ACBF’s conduct.
Other ACBF and Youpla information
On 30 August 2023, ASIC commenced civil penalty proceedings in the Federal Court against five former directors and officers of ACBF and Youpla for breaches of their duties (23-237MR).
The Government has announced a long-term resolution for people impacted by the collapse of the insurance provider Youpla Group, called the Youpla Support Program. The Youpla Support Program will begin on 1 July 2024 and will provide resolution payments to certain former Youpla members. For more information and to register for updates on this program visit niaa.gov.au/youpla or call 1800 079 098.
The Federal Government has previously announced the Youpla Group Funeral Benefits Program. The Program will pay a funeral benefit for a person who has passed away that was a Youpla fund member on or after 1 April 2020. If the member’s funeral was already paid, an application can still be made. The Program will run until 30 June 2024.
ASIC’s Moneysmart website has information about the different options to pay for your family members’ funerals and for planning your funeral arrangements. Consumers who have been affected by this matter can also contact financial counselling and legal services organisations such as Mob Strong Debt Help to understand their options.
ASIC acknowledges that the conduct of ACBF/Youpla may have caused significant distress for affected consumers. 13 YARN (13 92 76) is a First Nations crisis support line available 24 hours a day, 7 days per week.