ASIC investigation into remuneration arrangements & SMSF advice

Acting for a corporate authorised representative of an Australian financial services licensee in  ongoing ASIC investigation of suspected contraventions of the conflicted remuneration prohibitions in Division 4 of Part 7.7A of the Corporations Act and advice concerning establishment of self-managed superannuation funds.

On 28 June 2018, ASIC released two related reports: 

Canberra Raiders Sports Club v ACT Gambling & Racing Commission

Appeared for Canberra Raiders Sports Club against ACT Gambling & Racing Commission in proceedings in the Supreme Court of the ACT and merits review proceedings in the ACT Civil and Administrative Tribunal in challenge to imposition of financial penalty & additional licence conditions under the Gaming Machine Act 2004 (ACT).

On 14 June 2018, by consent the disciplinary action was successfully set aside and substituted with a reprimand.

ACNC Investigation into RSL LifeCare

Acted for RSL LifeCare Limited, an aged care and veterans charity, in investigation by Australian Charities and Not-for-profits Commission into the Returned Services League of NSW and RSL LifeCare in relation to breaches of the Governance Standards under the Australian Charities and Not-for-profits Commission Act 2012 (Cth), with potential loss of charitable status. 

On 16 May 2018, the ACNC accepted Enforceable Undertakings from the RSL charities.

ACCC Investigation into franchise arrangements

Acting for confidential international client in ongoing Australian Competition and Consumer Commission investigation re potential contraventions of ss 18 and 29(1)(m) of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), the Franchising Code of Conduct; and unfair contract terms prohibitions in Part 2-3 of the ACL.

Royal Commission into Misconduct in the Banking, Financial Services and Superannuation Industry

Royal Commission into Misconduct in the Banking, Financial Services and Superannuation Industry 

Acted for credit licensee Aussie Home Loans, a wholly owned subsidiary of the Commonwealth Bank of Australia, instructed by Clayton Utz, in relation to the conduct of fraudulent mortgage brokers and compliance with the  responsible lending obligations in Ch 3 of the National Consumer Credit Protection Act 2009 (Cth).

The Royal Commissioner, former High Court of Australia Justice, the Hon. Kenneth Hayne AC QC, is due to deliver an interim report to the Commonwealth Government in September 2018 and a Final Report in February 2019.

Estate of the late Walter Simpson (testamentary trust)

Application by the trustee of testamentary trust for judicial advice & directions from the Supreme Court of Queensland, appeared for the income beneficiary, instructed by Bradley Allen Love, Canberra. Question concerned whether fully franked dividends should be treated as income or capital, where dividend partly reflected sale of international business line. 

On 22 March 2018, the matter settled at final hearing before Crow J, following cross-examination of the parties' expert accountants, with orders apportioning the payments 60%:40% between capital and income.

Inquiry into Water Compliance and Enforcement in NSW

Ombudsman's Inquiry into Water Compliance and Enforcement 2007-2017

Acting for WaterNSW, licensor and regulator of water entitlements under the Water NSW 2014 Act (NSW) and the Water Management Act 2010 (NSW), instructed by Norton Rose Fulbright, in relation to the Ombudsman's ongoing investigation into water management compliance issues in the Murray-Darling Basin.

On 8 March 2018, the Ombudsman delivered a Special Report to the NSW Parliament in relation to a related investigation into WaterNSW's inadvertent provision of incorrect statistical information to the Ombudsman as to the enforcement actions that had been taken by or on behalf of WaterNSW.

Greek Atlas League Inc

Acted for Greek Atlas League, a Greek community association, in Supreme Court of New South Wales proceedings concerning the validity of elections for the Administrative Council.

On 21 February 2018, the matter settled at final hearing before Robb J, with consent orders as to the make-up of the Council and delivery up of association documents by former officers.

Public Inquiry into RSL Charitable Fundraising

Public Inquiry under the Charitable Fundraising Act 1991 (NSW) 

Acted for RSL LifeCare Limited, a veterans and aged care charity, instructed by PWC and Clayton Utz, in 10 weeks of hearings held between August and December 2017, into alleged misuse of charitable funds and breaches of the Charitable Fundraising Act 1991 (NSW) by the Returned Services League of NSW, its related entities, directors and officers.

On 31 January 2018, the Public Inquirer, former Supreme Court of NSW Chief Judge in Equity, the Hon. Patrica Bergin SC, delivered her Report to the NSW Parliament.

Independent Commission Against Corruption - Operation Credo (Public/Private Partnership Proposal for Water Infrastructure)

Acted for Senator the Hon. Arthur Sinodinos AO, in relation to his former role as Chairman of Australian Water Holdings, instructed by Arnold Bloch Leibler, from initial hearings in January 2014, and in all subsequent hearings and related matters.

On 3 August 2017, the final report of Commissioner the Hon. Megan Latham, a judge of the Supreme Court of New South Wales, was finally made public and was tabled in the NSW Parliament; no adverse findings were made against Senator Sinodinos: Independent Commission Against Corruption - Operation Credo Report.

ASIC investigation into suspected insider trading

Acted for a director of an ASX listed entity in ASIC investigation into suspected insider trading in the listed entity’s shares contrary to Division 3 of Pt 7.10 of the Corporations Act and potential continuous disclosure breaches (2016-2017).

On 17 February 2017, a "no action" letter was successfully obtained from ASIC.

 

Mews Scheme Winding Up

Acted for Mr Peter Warne (Chair, Macquarie Group), in his capacity as the ASIC appointed investor representative, instructed by Arnold Bloch Leibler, Melbourne, in long-running winding up proceedings of an unregistered managed investment scheme pursuant to s 601EE of the Corporations Act 2001 (Cth) in the Federal Court’s Victorian Registry at first instance and on appeal, between 2008 and November 2016.

ASIC v GDK Financial Solutions Pty Ltd (in liq) (2016) FCA (Middleton J) (final orders in chambers)

ASIC v GDK (No 14) [2013] FCA 459 (Gordon J) (approval of further settlement)

ASIC v GDK (No 11) [2012] FCA 1034 (Dodds-Streeton J)

ASIC v GDK (No 8) [2011] FCA 997 (Dodds-Streeton J) (ex parte for approval of compromise)

ZMB Australia Pty Ltd v Warne [2011] FCAFC 65 (appeal) (approval of compromise where settlement fair and reasonable and in the best interests of the investors represented by respondent)

ZMB Australia Pty Ltd v Warne [2011] FCA 311; (2011) 194 FCR 125 (Ryan J) (appointment as representative on appeal where receivers conflicted)

ASIC v GDK [2010] FCA 710 (Gray J) (trial of priority dispute: question whether deed effective to transfer equitable interests claimed by vendor in relation to land which was an asset of scheme, which vendor claimed to hold in priority to claims of investors in scheme)

ASIC v GDK (No 6) [2010] FCA 1092 (Finkelstein J) (ability of representative to compromise proceedings on behalf of a group)

AVS Property Pty Ltd v McMaster [2010] FCAFC 81; (2010) 79 ACSR 89 (appeal) (conditions for discharge of mortgage on scheme property)

AVS Property Pty Limited v Western Retirement Village Management Ltd (In Liq) [2009] FCA 512 (Ryan J) (appointment of representative on appeal)

ASIC v GDK (No 4) [2008] FCA 858 (Finkelstein J)

ASIC v GDK Financial Solutions Pty Ltd (in liq) No 3 [2008] FCA 448, (2008) 169 FCR 497, (2008) 248 ALR 766  (Finkelstein J) (appointment as representative)

'Poles & Wires' Privatisation of State Electricity Network Assets

Conducted negotiations with NSW Treasury on behalf of the industry's superannuation fund, resulting in landmark agreement with State of NSW for the future funding of the defined benefit pension schemes as part of the NSW "Poles and Wires" privatisation of the State's electricity network assets pursuant to the Electricity Network Assets (Authorised Transactions) Act 2015 (NSW), instructed direct.

Independent Commission Against Corruption - Operation Spicer (Political Donations in 2011 NSW State Election)

Acted for Senator the Hon. Arthur Sinodinos instructed by Arnold Bloch Leibler, in inquiry commencing in January 2014 concerning political donations by prohibited donors and breaches of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) in the 2011 NSW State Election campaign.

On 30 August 2016, the final report of Commissioner the Hon. Megan Latham, a judge of the Supreme Court of New South Wales, was delivered to the NSW Parliament; no adverse findings were made against Senator Sinodinos: Independent Commission Against Corruption - Operation Spicer Report.

Special Commission of Inquiry into the Greyhound Racing Industry

Acted for CEO of industry regulator Greyhound Racing NSW, instructed by Norton Rose Fulbright and Clayton Utz Sydney, in hearings held between September 2015 and February 2016.

On 16 June 2016, the Commissioner, former High Court Justice, Michael McHugh QC, delivered his final report to the NSW Parliament.  The final report was released on 7 July 2016, at which time the NSW Government announced plans to close down the industry, however, those plans were subsequently reversed.

Media coverage.

Volume 1  Volume 2  Volume 3  Amendments to the report

Independent Commission Against Corruption - Operation Tunic (Claims Management & Procurement)

Acted for the NSW Mine Subsidence Board in inquiry into alleged corrupt conduct in contract procurement, and whether end-to-end claims management process lacked satisfactory controls to prevent corruption. 

Inquiry commenced January 2015, report of ICAC Commissioner the Hon. Megan Latham, former Supreme Court of New South Wales judge, delivered on 23 March 2016: Investigation report 

Royal Commission into Trade Union Governance and Corruption (AWU/John Holland/Thiess Case Study)

Acted for Thiess/John Holland executive in hearings in October 2015 re his negotiations with former Australian Workers Union Secretary the Hon. Bill Shorten MP (now Federal Opposition Leader) with respect to construction of the East Link Project in Victoria.

Media Coverage.

On 6 January 2016, the Royal Commissioner, former High Court of Australia Justice, the Hon. Dyson Heydon QC, delivered his Final Report (Chapter 10.3: AWU: John Holland/Thiess Case Study) to the Commonwealth Government.