Australian Securities and Investments Commission v MobiSuper Pty Ltd [2021] FCA 855

Australian Securities and Investments Commission v MobiSuper Pty Ltd [2021] FCA 855

Tidswell contravened s 912A(1)(a) of the Corporations Act by not taking steps necessary to ensure the provision of financial services (issuance of interests in the MobiSuper Fund) was carried out efficiently, honestly and fairly. This included failing to monitor or supervise the fund promoter’s marketing and customer engagement activities, failing to review call scripts and training, and not mitigating specific identified risks to consumers. Tidswell also failed to comply with r 30 of APRA Prudential Standard SPS 231 by not maintaining sufficient resources and processes to manage and monitor the outsourcing relationship with Mobi.

Jurisdiction
Australia
Judgment Date
27 July 2021
Procedural Posture
Regulatory/corporations Proceeding / Consent Judgment/partial Settlement for Third Defendant, Interlocutory as to Other Defendants
Outcome
Declaration of contravention made against third defendant (Tidswell); proceedings otherwise dismissed as to Tidswell by consent; costs and other orders. Proceedings as to other defendants ongoing.
Legal Topics
['financial Services Licensing' 'superannuation Trustee Obligations' 'outsourcing by Superannuation Trustees' 'declarations in Regulatory Proceedings']
['corporations Law' 'superannuation' 'financial Services Regulation'] ['financial Services Licensing' 'superannuation Trustee Obligations' 'outsourcing by Superannuation Trustees' 'declarations in Regulatory Proceedings']

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Procedural Posture

Regulatory/corporations Proceeding / Consent Judgment/partial Settlement for Third Defendant, Interlocutory as to Other Defendants

Legal Issues

  1. 1 ['Whether third defendant (Tidswell Financial Services Ltd) contravened s 912A(1)(a) of the Corporations Act 2001 (Cth) by failing to do all things necessary to ensure relevant financial services were provided efficiently, honestly and fairly' 'Whether Tidswell failed to comply with paragraph 30 of APRA Prudential Standard SPS 231 Outsourcing']

Ratio Decidendi

Tidswell contravened s 912A(1)(a) of the Corporations Act by not taking steps necessary to ensure the provision of financial services (issuance of interests in the MobiSuper Fund) was carried out efficiently, honestly and fairly. This included failing to monitor or supervise the fund promoter’s marketing and customer engagement activities, failing to review call scripts and training, and not mitigating specific identified risks to consumers. Tidswell also failed to comply with r 30 of APRA Prudential Standard SPS 231 by not maintaining sufficient resources and processes to manage and monitor the outsourcing relationship with Mobi.

Court Disposition

Declaration of contravention made against third defendant (Tidswell); proceedings otherwise dismissed as to Tidswell by consent; costs and other orders. Proceedings as to other defendants ongoing.

Orders

  • ['Declaration that Tidswell contravened s 912A(1)(a) Corporations Act 2001 (Cth) and paragraph 30 of APRA Prudential Standard SPS 231 Outsourcing' 'Tidswell to pay ASIC’s costs as against it fixed at $50,000' 'Tidswell to bear its own costs' 'Tidswell undertakes not to pay ASIC’s costs out of trust funds held for...