ASIC flexes its muscles to gain power to ban managers in the financial services sector

By Lisa-Marie McKechnie, Partner, and Ahmed Rizk, Lawyer The Australian Securities and Investments Commission (ASIC) may soon be getting expanded powers to ban persons involved in the financial services industry and prevent them from having a role in a financial services business, according to a consultation paper released on 6 September 2017. But are the
Read more…

Court Approval: Don’t take it for granted

By Michael Chapman, Senior Associate, Jacqueline Wang, Senior Associate and Sheridan Handley, Lawyer Two recent decisions of the Supreme Court of Victoria have shown that the Court’s approval should not be taken for granted when seeking approval of settlement of a proceeding or seeking judicial advice or direction of the Court on a matter of administration
Read more…

Spotlight on Super – May 2016

Welcome to the May edition of Spotlight on Super! This publication is filled with legal and regulatory developments designed to help super trustees meet the challenge of minimising the impact and maximising strategic opportunities arising from regulatory change. In this edition… The ATO and APRA remind trustees of their upcoming SuperStream obligations. ASIC releases updated regulatory guidance
Read more…

The Budget 2016-17: How it affects Financial Services

By Christopher Lim, Lawyer, and Luke Hooper, Special Counsel Released on 3 May 2016, the Budget contains some interesting announcements affecting the financial services industry. The Australian managed funds industry has been given an international push with the announcement of Collective Investment Vehicle initiatives and support for the Asia Region Funds Passport. The Government has
Read more…

Lenders beware: when is a farm a farm?

By Dan Mackay, Partner, Ariel Borland, Partner, and Michael Chapman, Associate A recent decision of the New South Wales Supreme Court confirms that failure to comply with the mediation notice requirements of the Farm Debt Mediation Act 1994 (NSW) prior to taking action to repossess property will be fatal.  More interestingly, in a decision relevant
Read more…

Spotlight on Super – April 2016

Welcome to Mills Oakley’s April edition of Spotlight on Super! This publication is filled with legal and regulatory developments designed to help super trustees meet the challenge of minimising the impact and maximising strategic opportunities arising from regulatory change. In this edition… Bills governing choice investment option product dashboards, portfolio holdings disclosure and choice of fund has
Read more…

Back to the drawing board for Willmott class action parties: Federal Court refuses to approve Willmott settlements

Kelly v Willmott Forests Ltd (in liquidation)(No 4) [2016] FCA 323 By Dan Mackay, Partner, and Jane Leong, Lawyer On Tuesday, the Federal Court refused applications for approval of in-principle settlements of four overlapping (but separate) class actions in relation to failed managed investment schemes operated by Willmott Forests. Settlements had been reached by the
Read more…

‘Bitter Harvest’ – Senate Economics References Committee delivers report into Agribusiness MIS

By Dan Mackay, Partner, and Jacqueline Wang, Associate The Senate Economics References Committee (Committee) has delivered ‘Bitter Harvest’, a 310 page report into agribusiness managed investment schemes (MIS) following its two year inquiry. Access the report here. The report addresses both forestry and horticultural agribusiness MIS, a wider remit than its original terms of reference,
Read more…

Senate Inquiry Report into Forestry Managed Investment Schemes due 14 March 2016

By Dan Mackay, Partner, Jacqueline Wang, Associate and Jane Leong, Lawyer After its ninth extension of time, the Senate Economics Reference Committee (Committee) is due to report on its inquiry into the structure and development of forestry managed investment schemes (MIS) on 14 March 2016[1]. The inquiry was initiated[2] to investigate the high profile collapse of a number
Read more…

The devil is in the detail

By Dan Mackay, Partner, Jacqueline Wang, Associate, and Jane Leong, Lawyer Are you confident of what is required to transact the fundamental aspects of your organisation’s business?  You need to be. The recent decision of the New South Wales Court of Appeal (NSWCA) in Alexander v Burne [2015] NSWCA 377 highlights the serious legal and practical
Read more…

Spotlight on Super – February 2016

2016 looks to be another year of regulatory uncertainty for super funds. Click here for our new Spotlight on Super, a monthly publication of legal and regulatory developments designed to help super trustees meet the challenge of minimising the impact and maximising strategic opportunities arising from regulatory change. In this edition… There has been significant
Read more…

Accountants – don’t be shut out of super

By Lauree Blair, Senior Associate; and Mark Bland, Partner Act now and get the benefit of a limited offering from Mills Oakley. Accountants’ exemption ends 30 June 2016 – act now What is the accountants’ exemption? It allows accountants to provide advice on the establishment, operation and structuring of self-managed superannuation funds (SMSFs), without an
Read more…

Corporations Amendment (Crowd-Sourced Funding) Bill 2015

Mills Oakley has made a submission on the Corporations Amendment (Crowd-sourced Funding) Bill 2015. The bill would place the CSF intermediary (platform provider) at the centre of the regime, requiring that all crowd-funding be done through a CSF intermediary. The submission expresses the concern that the CSF intermediary is put in a position of material
Read more…

Death Benefit Nominations – hard or soft copy nominations in the digital age?

By Luke Hooper, Special Counsel Three choices As we are all aware, the law allows superannuation fund trustees to provide three types of death benefit nomination options to members – non-binding, binding, and consent nominations. Each of the three options provides different degrees of certainty to members as to whom their superannuation death benefits will
Read more…

ASIC Releases Licensing and Registration Activity Report

By Chris Lim, Lawyer, and Jane Leong, Lawyer The Australian Securities and Investments Commission (ASIC) last week published its second six-monthly report on its approach to licensing and professional registration applications. ASIC released its first licensing activity report in May 2015. Report 448: Overview of licensing and professional registration applications: January to June 2015 highlights
Read more…

Accountant banned for 6 years for engaging in unlicensed financial services

By Dan Mackay, Partner, and Jane Leong, Lawyer Dimitri Amargianitakis has failed in his attempt to have an ASIC ban of eight years reduced to three by the Administrative Appeals Tribunal (AAT): Dimitri Amargianitakis v Australian Securities and Investments Commission [2015] AATA 720. The AAT’s decision highlights the risks faced by accountants and other professionals
Read more…

ASIC Seeks Improved Compliance by Super Trustees and Responsible Entities

By Mark Bland, Partner ASIC issued a media release this week presenting an overview of compliance issues identified in its surveillance of superannuation trustees and responsible entities. Key themes are advertising, governance, record keeping and broader misleading or deceptive conduct. For superannuation trustees, there is a strong theme of misleading or deceptive conduct, including a
Read more…

Earlier super access for terminally ill

From 1 July 2015, a new regulation affecting the Income Tax Assessment Regulations 1997, Retirement Savings Account Regulations 1994 and Superannuation Industry (Supervision) Regulations 1994 (Regulations) gives terminally ill Members earlier access to their superannuation account. Under the Regulations, a trustee of a superannuation fund is able to release the full amount of a Member’s
Read more…

Managed funds and custodians – It’s time to deal with FATCA

By Christopher Lim, Lawyer If you haven’t figured out how you will be dealing with FATCA – time is almost up.  FATCA is an account reporting regime which will affect nearly every Australian managed fund and custodian.  Even if you do not have account holders who are U.S. persons, you will need to consider how
Read more…

Requirement for Life Insured to Attend a Vocational Assessment and “Constructive Denial”

By Jason Leonard, Partner Group life insurance policies which provide cover to insured members for total and permanent disablement (TPD) generally include a provision requiring the insured member to attend a medical examination with a ‘doctor’ or a ‘medically qualified practitioner’ as part of the claim process.  Some policies may not include any such provision. 
Read more…

New Adviser Register To Be Funded By Industry

The Federal Government announced that a register of financial planners will be established by early next year. The cost of the register is estimated around $5million and funded (in part at least) by Australian Financial Services licensees through a $5 increase in their annual fees. As at today’s date there are only around 5000 licensees
Read more…

The Significant Investment Visa: Early Indications of a New Direction for Complying Investments

By Warwick Painter, Partner and Jacqueline McStay, Senior Associate A little over a week ago, we reported on the release by the Federal Government of its Industry Innovation and Competitiveness Agenda. One important initiative under the Agenda is a reform of the “complying investment” criteria under the Significant Investor Visa (SIV) programme as well as
Read more…

TAL Focuses Court’s Mind on Malingering of Depression

Life insurers and general insurers who offer income protection products under their general insurance licences are breathing a collective sigh of relief following TAL Life Limited’s (TAL’s) recent successful defence of an income protection breach of contract claim brought in the New South Wales Supreme Court by insured member, Fred Fehmi Zahr [2014] NSWSC 358.
Read more…

REST resorts to Court on conflicts and director remuneration: Case note and discussion of Re REST [2013] NSWSC 1681

Overview Each trustee is grappling with issues particular to their fund arising out of the implementation of the Stronger Super reforms.  Earlier this month, the trustee of the Retail Employees Superannuation Trust (REST) resolved one such problem relating to director remuneration with the assistance of the Court. REST appeared to be having difficulty finding suitably
Read more…

New and enhanced conflicts management obligations and liability for superannuation trustees and directors

The Australian Prudential Regulation Authority (APRA) is calling for a ‘conflicts management culture’ from the board to business operations. Rome wasn’t built in a day. As trustees, directors, responsible managers and employees become more aware of the extent to which conflicts permeate the industry and develop a conflicts management culture, the shifting political landscape will
Read more…

Significant Investor Visa – New Investment Classes

The categories of eligible managed fund investments for significant investor visa holders have recently been expanded. The new categories are: annuities, derivatives, mortgages and interests in unregulated managed funds. Changes to the existing categories provide for a wider range of investments in those categories. From 23 November 2013, ASIC-regulated fund managers operating complying managed funds
Read more…

FOFA reforms – “Conflicted remuneration”

What sellers of financial planning businesses should know Under the Future of Financial Advice (“FOFA”) reforms to the Corporations Act and associated regulations, the key issues for sellers of financial planning businesses or client registers are likely to be as follows (in brief summary): Background 1.   Under the FOFA reforms, AFS licensees and authorised representatives
Read more…

Poachers beware: caution required in a fluid market

The New South Wales Supreme Court in Wilson HTM Investment Group Limited & Ors v Pagliaro & Ors[1] ordered that an investment advisory firm pay $174,416 in damages for its conduct in poaching advisors from a rival.   In light of the Future of Financial Advice reforms, which have sparked a flurry of fragmentation and
Read more…

Trustees beware – check with the SCT before paying the death benefit or risk paying twice

Where a Trustee has made a determination in respect of the distribution of a death benefit from the fund, it is required to give the potential beneficiaries 28 days to lodge any objection to that decision. Provided an objection has been lodged within that time and the Trustee has subsequently given written notice of its
Read more…

INCREASED CONTRIBUTION REPORTING OBLIGATIONS FOR SUPER TRUSTEES – ARE YOU READY?

On 27 July 2012, Treasury released an exposure draft bill and explanatory memorandum regarding the amendment of the Corporations Act 2001 (Cth) to require superannuation funds and RSA providers to report the contributions they have received to each member on either a quarterly or six monthly basis. As a part of the proposed amendments, the
Read more…

APRA Draft Prudential Standards for Superannuation

What do they mean for your RSE? RSE Licensees now have three large tranches of draft legislation resulting from the Stronger Super reforms that directly impact their business operations and members of their funds. On 27 April 2012 APRA released eleven draft Prudential Standards for superannuation (Draft APRA PS). APRA has extended to the superannuation
Read more…

Privacy Policy | Terms of Use