Commercial disputes and regulatory actions in the Australian financial services sector are increasingly common. Litigation arising from financial services disputes is frequently complex and technical in nature.
In recent years, ASIC has emphasised its concerns around poor compliance of AFS licensees, making this an area of particular focus when it comes to investigations and enforcement action. Financial services businesses, and their directors and officers, are prominent targets of representative or group proceedings (class actions), with Australian companies amongst the most likely worldwide to be exposed to class action litigation. Further, financial services businesses regularly confront commercial issues that may potentially give rise to substantial disputes and civil litigation.
Our financial services disputes and regulatory (FSDR) team draws together leading experts practising in financial services, regulatory and compliance, and litigation and dispute resolution, who collectively provide seamless, commercial and practical advice and representation. Our team provides a strategic perspective at an early stage to identify risks, plan and implement strategies prior to a dispute arising, assist with negotiations when a dispute is realised, and where the dispute cannot be resolved conduct any litigation necessary.
Our FSDR team represents a broad range of clients in the financial services sector, including investment and property funds, superannuation trustees, insurers and other AFS licensees, on a range of issues such as:
- investigations by ASIC, ATO, APRA and ACCC
- misleading conduct and prospectus content issues
- continuous disclosure issues and insider trading
- Royal Commissions and other commissions of inquiry
- investor claims and class actions
- issues relating to trustee duties
- unconscionable conduct
- judicial and administrative review of decisions by regulators
- breach of duty claims under the Corporations Act and SIS Act
- commercial and contractual disputes in the financial services sector
- Representing the non-executive directors of Banksia Securities Limited in relation to a class action filed on behalf of debenture holders, as well as an ASIC investigation and public examination hearings commenced by the company’s receivers and managers. The civil claims against our clients have been successfully resolved.
- Representing the responsible entity of a property investment trust in ASIC investigations concerning suspected breaches of ASX continuous disclosure obligations, including assisting with responses to and compliance with examination and statutory information gathering notices and otherwise liaising with ASIC. As a consequence of our dealings with ASIC, ASIC ultimately did not take action against our client.
- Representing former directors of an Australian company in defending an investor class action arising from the collapse of India’s Pearls Group, involving one of the largest ‘Ponzi’ managed investment schemes in history, with $10 billion in funds owing to 50 million investors.
- Acting for Local Government Financial Services Pty Ltd in Federal Court representative proceedings brought by Bathurst and other local councils involving claims arising out of failed investments in a synthetic structured credit investment product.
- Representing four executives of GE Capital in relation to an investigation by ASIC into alleged breaches of the ASIC Act.
- Acting for Expense Reduction Analysts Group in responding to an investigation by the ACCC into alleged misleading representations regarding expense reduction financial services.
- Acting for a superannuation fund ratings business in relation to a reporting breach and liaising with ASIC in respect of remedial action.
- Acting for various companies and individuals in ASIC investigations concerning alleged misleading conduct, insider trading, market manipulation and other breaches of Corporations Act and AFSL requirements.
- Successfully applying to ASIC for confirmation of relief from the requirement to hold an AFSL in Australia for a Hong Kong domiciled company, preparing the application in its entirety and negotiating with ASIC to grant the relief, enabling the client to manage investments for Australian domiciled funds.
- Representing an industry superannuation fund in connection with the fund’s response to notices from, appearance at and submissions to, the Trade Union Royal Commission.
- Acting for Fincorp Investments in proceedings brought against it by ASIC for alleged contraventions of the Corporations Act in the issue of a prospectus relating to debentures.
- Acting for the responsible entity of a mortgage fund in an investigation by ASIC into the lending practices of the fund, including responding to notices to produce documents and information and attending examinations of individuals involved in the operations of the fund.
- Acting for a Big Four bank in a multimillion-dollar matter claim concerning losses stemming from an alleged by co-borrowers. The matter has involved forensic handwriting analysis and a complex analysis of damages claimed, including issues of causation.
Thinking| 13 Feb 2018
The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry held its first public hearing today. Although no evidence was taken, we set out below five key points arising from that first hearing.
Thinking| 19 Dec 2017
On 18 December 2017 the Governor-General issued Letters Patent to the Honourable Ken Hayne AC QC formally establishing the Banking and Financial Services Royal Commission. As anticipated, the Letters Patent generally follow the draft terms of reference released a few weeks ago, which we initially reported on here. However, in addition to clarifying the wording of the draft terms, the Letters Patent contain some key departures from the draft terms of reference.