Court Case

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ASIC has now commenced proceedings in the Federal Court against ANZ for misrepresentation and unconscionable conduct.
ASIC will allege that ANZ was not entitled to charge certain periodic payment fees under the bank’s contracts with its customers.
Between August 2003 and 23 February 2016 (the 2003-2016 Period), ASIC alleges that ANZ wrongly charged transaction fees and non-payment fees for periodical payments between accounts in the same name.
They stated, transaction fees were charged when a periodical payment was successful, and non-payment fees were charged when a periodical payment could not be made due to insufficient funds in the customer’s account.
During the 2003-2016 period the transaction fee for periodical payments varied between $1.70 and $4 for business accounts and was either $4 or free for retail accounts. And the non-payment fee for periodical payments varied between $35 and $45 for business accounts and was between $6 and $45 for retail accounts.
ASIC alleges that between 26 July 2013 and 23 February 2016, ANZ unlawfully charged the fees on at least 1,340,087 occasions.
ASIC estimates that the total gross loss to customers during the period 1 January 2008 to 23 February 2016 is in excess of $50 million. ANZ has paid approximately $28 million in remediation to customers to date.
However, ANZ has not paid remediation to customers who have been charged the fees prior to 31 December 2007.
The authority contends that ANZ first became aware there was a risk the bank was not entitled to charge these fees in July 2011. 
However, ASIC will say that ANZ did not:
1. provide written notification of the existence of a possible issue in relation to the fees to ASIC until 14 February 2014; 2. commence notifying affected customers about the issue until at least 23 September 2015; 3. change its terms and conditions to permit the charging of the fees until 23 February 2016; and 4. commence making remediation payments in relation to the unlawfully charged fees until August 2016. 5. At the heart of ASIC’s action is the fact that ANZ continued to charge the fees during the 2003-2016 Period, despite what ANZ already knew.
ANZ first reported the matter to ASIC in February 2014.
ASIC stated, "in September 2018, ANZ contacted ASIC advising that information they had previously provided to ASIC relating to ANZ’s identification of the issue was incomplete. As a result of the new information, ASIC commenced an investigation into ANZ in October 2018."
"ASIC alleges ANZ breached section 912A(1)(a) and (c) the Corporations Act 2001 (Corporations Act) which requires a licensee to ensure that the financial services covered by its licence are provided efficiently, honestly and fairly and to comply with financial services laws because it amongst other things, provided incomplete or misleading information when it reported the issue to ASIC in February 2014."
"ASIC further alleges breaches by ANZ of the Australian Securities and Investments Commission Act 2001 (ASIC Act), including that ANZ engaged in misleading or deceptive conduct, made false or misleading representations and engaged in unconscionable conduct because the bank:"
1. continued to charge the fees when it knew that the fees were unlawful or were at risk of being unlawful; 2. knew that it was highly unlikely that it would be able to remediate all affected customers; 3. failed to inform customers who may have been affected by its unlawful charging until September 2015; and 4. deliberately did not make remediation payments to customers who had been charged the fees between August 2003 to 31 December 2007. 5. The ASIC Act contraventions attract a maximum pecuniary penalty of between $1.7 million and $2.1 million per contravention.
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ASIC sues ANZ for unconscionable conduct over unlawful transaction fees

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The big fines and directorship bans on Octaviar executives over the dishonest use of investors’ funds have been upheld by an appeals court.
The Queensland Court of Appeal has published reasons for judgment dismissing the appeals of Craig Robert White and Guy Hutchings, who were officers of MFS Investment Management Limited (MFSIM), the former responsible entity of the Premium Income Fund (PIF). 
An appeal by Marilyn Anne Watts, a former funds manager of PIF, was also dismissed. 
White, Hutchings and Watts were ordered to pay ASIC’s costs of their appeals.
In a separate appeal brought by Michael Christodoulou King, the court partially allowed the appeal finding that King had not contravened the Corporations Act as an ‘officer’ of MFSIM at the relevant time. The court found that his contraventions were limited to his being knowingly concerned in MFSIM’s contravention by the misapplication of $130 million of PIF’s money.
The court has given further directions to King and ASIC in relation to the finalisation of his appeal.
The proceedings relate to breaches committed in connection with the misappropriation of $147.5 million of funds that had been held by the PIF on behalf of unitholders.  The misappropriated funds were used to pay debts owed by other entities in the MFS Group (also known as Octaviar) and false documents were created, some backdated and used to purportedly justify the use of the funds. The MFS Group collapsed in 2008 owing approximately $2.5 billion.
In May 2016, the court found that King, White, Anderson, Hutchings and Watts had collectively committed 217 contraventions of the Corporations Act (16-158MR).  The court found that King, White, Anderson and Hutchings had breached their duties as officers of MFSIM to act honestly and in the best interests of members of PIF.  Watts was found to have been involved in MFSIM’s breach of its duty to act honestly and in the best interests of members of the fund.
In May 2017, after more than 70 days of hearings, excluding interlocutory hearings and appeals, Justice Douglas made orders, imposing substantial disqualifications from managing corporations, pecuniary penalties and other relief in relation to the officers and the funds manager.
In June 2017, King, White, Anderson, Hutchings and Watts each appealed from the decision of the court at first instance
Anderson filed a notice of discontinuance of his appeal in September 2017, agreeing that his appeal be discontinued and that he pay ASIC’s costs of his appeal.
The remaining appeals were heard over 11 days in June 2018.
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Appeals dismissed over convictions following MFS Group collapse 

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The trial of the Banksia Group proceedings which had been scheduled to commence in February 2018 has been vacated by the Supreme Court of Victoria. 
Instead the court will be hearing the plaintiff’s application for the approval of a settlement.
It has been listed for 30 January 2018 before the Honourable Justice Croft of the Supreme Court of Victoria.
Banksia investor Laurence Bolitho of Kyabram was the lead plaintiff in the case which was scheduled to run for 2.5 months.
The plaintiff has entered into a settlement of his claims made against the trustee in the Banksia Group proceedings. The plaintiff’s claim against the trustee was to recover a sum in excess of $200 million (inclusive of interest from 24 December 2012).  The settlement will only take effect if it is approved by the Supreme Court of Victoria.
As well as settling the Plaintiff’s claim in the <a href="http://www.banksiagroup.com.au/Pages/Banksia_Mortgage_Fund.aspx" target="_blank">Banksia Group</a> Proceeding, Banksia’s own claims against the trustee brought in a separate proceeding (“Liquidators’ proceeding”) will be settled as part of the settlement. Banksia’s claim against the trustee is for approximately $170 million.  The loss claimed by Banksia overlaps with the Plaintiff’s claim in the Banksia Group Proceeding.  The law prevents debenture holders recovering more than the total amount of their loss.
To settle the claims made in both the Banksia Group Proceeding and the Liquidators’ proceeding, the trustee will:
<ul>
<li>pay $64 million;</li>
<li>release Banksia from an existing claim for $3.96m for additional remuneration in respect of additional work performed by the trustee in a period of 16 months from 25 October 2012 to February 2014; and</li>
<li>release Banksia from any further claims for remuneration (as yet unquantified).</li>
</ul>
Subject to their agreeing to keep its contents confidential, group members represented in the Banksia Group Proceeding are entitled to inspect the deed of settlement.  
The Plaintiff has not settled his claims made against Banksia itself, however, the prospect of any recovery from Banksia is uncertain as Banksia has been placed into liquidation.
Meanwhile Banksia is pursuing claims against its insurance broker and insurers and Banksia is hopeful of recovery in those actions. 
The Liquidators (acting as Special Purpose Receivers) hold approximately $14 million.
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Banksia Securities class action nears settlement

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The NSW Land &amp; Environment Court has refused RDA Property Group's appeal to build seven more units at its Bronte Place apartment project on the controversial former Bronte RSL site.
RDA, headed by the former fashion identity Danny Avidan, sought an intensification of the project at at 109-113 Macpherson Street, which had been previously approved for 21 apartments last year.
RDA lodged a revised development application last December, which was refused by Waverley Council.
<img src="https://www.caselaw.nsw.gov.au/asset/59e93d2be4b058596cbab42b" height="301">
<div data-ad-size="4x4" data-device-type="web" data-ad-tar="pos=1" data-google-query-id="CO_mmOXugNACFc82lgodRO4DSw">Design of the initial<a href="https://bronteplaceliving.com.au/" target="_blank"> three storey block</a> was by architects SJB. Town planning expert witness Anthony Betros was engaged by the developer applicant and Joseph Vescio by the Council. Colin Biggers Paisley were the solicitors for the applicant with Wilshire Webb Staunton Beattie Lawyers for the respondent council.</div>
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It took four years to obtain development approval for the project which the former fashion identity Danny Avidan bought from the Sydney developer Winston Langley.
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Commissioner Dickson on Tuesday dismissed the appeal due to the solar impact the additional units could cause to existing approved units.
"The proposed development results in a material change in impact to the solar amenity experienced by the approved apartments and to a lesser extent the adjoining development," the judgement ruled adding the impact arises from an exceedance of the controls.
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<div>Avidan told Fairfax Media he accepted the decision.</div>
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"I respectfully accept the court's decision despite the fact that I disagree with the findings. I will proceed with the current approvals," he said.
The community, led by the Save Bronte group, successfully protested the developer's decision to vary the 21-unit low-rise approval.
A three-bedroom penthouse, one of two in the boutique Bronte Place development, was sold on its launch last October, for $4 million.
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It was among the $32 million worth of apartments sold in the long-awaited redevelopment on the site of the ­former RSL premises.
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The project was being sold through CBRE in what was the first major apartment project in Bronte in two decades.
<div id="ad-block-9927527878-2" data-ad-size="4x4" data-device-type="web" data-ad-tar="pos=1" data-google-query-id="CO_mmOXugNACFc82lgodRO4DSw">Sales included a one-bedroom, 30sq m apartment that sold for $1.55 million. The $4 million sale was a three-bedroom, 135sq m apartment.</div>
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Danny Avidan loses L&E Court appeal on controversial Bronte RSL site intensification

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Allan Raad of Wentworthville, NSW and his brother-in-law Yousef Joseph Bazouni of Sandringham, NSW, have appeared in the Downing Centre Local Court on charges of breaching their director duties and fraudulently removing company assets.  ASIC alleges that Mr Raad dishonestly used his position as a director of Cornish Property Services Pty Ltd (the company) with the intention of indirectly gaining an advantage for himself and that he fraudulently removed property belonging to the company. It is also alleged that Mr Bazouni aided Mr Raad in these alleged offences.  The charges were brought against Mr Raad and Mr Bazouni following an ASIC investigation into the sale of the company assets shortly before it was placed in liquidation.  ASIC alleges that on 2 July 2011, Mr Raad sold some of the company assets to Mr Bazouni's company for $20,000.
Then, on 4 August 2011, Mr Bazouni on-sold some of those assets to an unrelated party for $176,000 and gave the proceeds to Mr Raad.
ASIC alleges that Mr Raad used the funds on personal expenses and to make preferential payments to creditors of the company to whom Mr Raad provided personal guarantees. However, Mr Raad did not make payments to other creditors of the Company. ASIC also investigated debtor payments that were owed to the Company. ASIC alleges that on 29 July 2011 and 11 August 2011 Mr Raad and Mr Bazouni redirected the debtor payments to Mr Bazouni's company. Once the money was received, Mr Bazouni transferred $21,000 to Mr Raad. Mr Raad placed the company into voluntary liquidation on 18 August 2011 having outstanding liabilities of $1,643,052.55, of which $1,115,197.12 was owed to unsecured creditors.  Messrs Raad and Bazouni appeared last week on 18 October 2017.
The matter was adjourned for mention to 21 November 2017 at the Downing Centre Local Court.
The Commonwealth Director of Public Prosecutions is prosecuting the matter.
<h2>Mr Raad has been charged with one count under s184(2) of the Corporations Act and two counts under s590(1) of the Corporations Act. Mr Bazouni has been charged with aiding and abetting Mr Raad in committing these offences pursuant to Clause 11.2(1) of the Commonwealth Criminal Code.</h2>
 The maximum penalty for a breach of s184(2) is 2000 penalty units or imprisonment for five years, or both.The maximum penalty for a breach of s590(1) is 100 penalty units or imprisonment for two years, or both.
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ASIC move against two directors 

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Former veteran CBRE agent Rick Butler has refuted CBRE's claims that he and his company, Richard Butler Property Advisors had allegedly "conducted business that breached confidentiality agreements with CBRE".
It was his first comments since it emerged last week that CBRE has commenced legal action seeking "substantial damages."
Despite being at the firm for 27 years, Mr Butler said he was actually retrenched in August last year.
He said he had always complied with all of his obligations to CBRE during and after his employment and would be defending his reputation.
"At 66 it's encouraging that a giant international corporation like CBRE now sees me as a threat," he told The Australian Financial Review 
"I'm grateful for the support of many clients.
"In my time at CBRE we were never afraid of competition and I'm not afraid of it now.
"Legal action will in no way distract me from my work," he said. 
CBRE has stood by its claims, the paper advised.
"We are confident in the strength of our case and we are prepared to proceed through the complete legal process to achieve a successful outcome," a spokesperson said. 
Butler, one of Australia's leading real estate agents and CBRE's lead conduit to offshore capital, left the firm last year.
It is understood CBRE commenced the legal battle last Wednesday, issuing a notice to Mr Butler and his company's lawyers, with plans to resolve the dispute through mediation and arbitration.
"Former CBRE agent, Rick Butler (now of Rick Butler Property Advisers Pty Ltd) provided advisory services to CBRE in 2016 which required that he and RBPA comply with contractual obligations relating to confidentiality, utmost good faith and fidelity, and acting in the best interest of CBRE," the company said in a statement. 
"In November 2016, a number of individuals, including Josh Cullen, tendered their resignations from CBRE to join RBPA."
 "CBRE has today taken the first steps in commencing action against RBPA and Rick Butler in relation to these events.
"These actions leave CBRE no alternative but to seek substantial damages."
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Lawyered up CBRE Australia sees veteran Rick Butler as a "threat"   

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Jamie McIntyre and his brother Dennis McIntyre have accepted 10-year bans from ASIC on managing corporation or operating a financial services business.
This follows an agreement between ASIC and the brothers that the five Victorian land banking schemes, promoted through Jamie McIntyre’s 21st Century Group, were unregistered.
It also noted that they operated a financial business without a license at the time that they promoted it to their investors. Liquidators were unable to locate more than $7 million outlaid on controversial options on five landbanking schemes proposed for the outskirts of Melbourne, Bendigo and Townsville.
The McIntyre brothers also agreed to pay the $50,000 legal costs for ASIC.
Fairfax Media reported the $7 million was lost from more than 100 investors.
Justice Bromwich said that there were little prospect of reimbursement to the investors.
"[The defendants] have effectively capitulated in the face of what seemed the inevitable prospect of success [for ASIC] and reached agreement that the relief agreements were necessary and appropriate," said Federal Court Justice Bromwich in his judgement on Monday.
"Five illegal investment schemes were operated by the eight companies associated with Jamie and Dennis McIntyre," Justice Bromwich said.
Deloitte were appointed as joint liquidators to the corporate respondents to ASIC’s proceeding that commenced in August last year.
There is an unrelated property group by the same name. 
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Landbanking 21st Century's Jamie McIntyre and brother accept 10 year bans from ASIC

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ASIC has discontinued its proceedings against Simon Tickner and Lisa Darcy, former directors of LM Investment Management Ltd (LMIM). 
In 2014, ASIC commenced civil penalty proceedings in the Federal Court of Australia seeking financial penalties and banning orders following the collapse of the Gold Coast-based fund manager against founder Peter Charles Drake and former directors Francene Maree Mulder, Eghard van der Hoven, Simon Jeremy Tickner and Lisa Maree Darcy.
The claims against Mr Tickner and Ms Darcy focused on their conduct as directors in signing off a loan to Maddison Estate Pty Ltd, which Mr Drake owned and controlled, in 2011. Proceedings against the other directors focused on both the 2011 transaction and another transaction that occurred in 2012.
The trial commenced on 29 August 2016. On 12 September 2016, after the close of its case, ASIC discontinued its claim against all directors in relation to the 2011 transaction.   
The proceeding related to the 2012 transaction continues against Mr Drake, Ms Mulder and Mr van der Hoven and has been adjourned until 23 September 2016 for closing submissions.
LMIM was the responsible entity for seven registered managed investment schemes and the trustee for MPF, an unregistered managed investment scheme with about 4,500 investors. More than $400 million was invested in MPF. In total, LMIM was responsible for managing at least $800 million on behalf of approximately 12,000 investors in Australia and overseas.
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ASIC discontinues proceedings against LM Investment directors

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The former property developer Warren Anderson is suing the mortgage fund, Angas Securities and his receivers KordaMentha.
He is seeking $174 million, claiming they acted inappropriately in selling up his assets and forcing him into bankruptcy.
The lodgement of the statement of claim by Warren Anderson and his children, revealed today in The Australian, comes as shares in Angas on second-tier bourse the National Stock Exchange of Australia were suspended from trading yesterday given its wider concerns.
The Australian on Tuesday revealed Angas, which owes investors $220 million, had missed another deadline to repay investors.
Facing major financial problems, Angas has failed to meet any of the first three instalments in time and in full and trustee The Trust Company has said it is now “deeply concerned” Angas will not be able to make the payments.
The Anderson issue arose after Anderson’s family trust Owston Nominees No 2 borrowed money from Angas.
In March 2009 Angas appointed receivers KordaMentha to the trust following a breakdown of Mr Anderson’s marriage.
KordaMentha and Angas took control of Owston’s biggest asset, the Fernhill mansion at Mulgoa in western Sydney.
A spokeswoman for KordaMentha told the Australia the firm was not handling the case because the two former partners who had overseen the Owston receivership, Chris Powell and Stephan Duncan, were no longer with the company.
Their Adelaide-based firm DuncanPowell would be responding to Mr Anderson’s claims, she said, although they had not yet been served so were unable to comment.
Fernhill is currently for sale. Set on 383 hectares at the foot of the Blue Mountains, its stunning seven bedroom sandstone residence was completed in the 1840s for the Cox pioneering family.
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