Download Aust Superannuation Law Bulletin - The Trio debacle

The Trio debacle — “the largest
superannuation fraud in Australian history”:
Part 2
David Elliott THOMSON GEER
This is the second part of a two-part article on the collapse of the Trio Group. Part 1 traced the events culminating in
the collapse of the Trio Group. This part surveys the enforcement actions taken by ASIC and APRA. APRA’s planned
enforcement action against former Trio directors has concluded.
Enforcement actions
The Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation
Authority (APRA) took enforcement actions against a
number of the companies and individuals involved in the
collapse of the Trio Capital Group (Trio Group). These
enforcement actions are summarised in the Appendix.
Further details of the actions against particular individuals are provided below.
•
•
Shawn Richard
As mentioned in Part 1 of this article,1 Mr Shawn
Richard was a central figure in the collapse of the Trio
Group.
Between November 2005 and September 2009, as a
director of several entities in the Trio Group, Mr Richard
dishonestly operated the business in a way that was
designed to, or had the effect of, diverting superannuation funds into overseas funds.2 Through the Trio Group
and his dishonest dealings, he obtained a significant
financial benefit including additional payments totalling
over $1.3 million.3 In the Supreme Court of NSW,
Garling J found that Mr Richard’s conduct was “manifestly dishonest, continued over a significant period and
only came to light when the Trio Group failed”.4
ASIC commenced an investigation into Mr Richard’s
conduct as an officer in the Trio Group which resulted in
ASIC identifying that Mr Richard:
• had failed to disclose conflicts of interests, contrary to the duty he owed to Trio Capital Limited
(Trio) as its agent;5
• did not act in the best interests of investors in
managed investment schemes (MISs) operated by
Trio, including the Astarra Strategic Fund (ASF),
contrary to the duty he owed to Trio as its agent;6
• profited from his position in relation to the affairs
of Trio by his receipt of payments and did not
60
•
•
disclose and actively concealed those payments
from Trio, contrary to the duty he owed to Trio as
its agent;7
made materially misleading statements, knowing
the statements were likely to have the effect of
inducing Trio to acquire further financial products;8
knowingly made materially misleading statements
in a Product Disclosure Statement for the ASF
where he knew that the statements were likely to
induce investors to apply for financial products;9
knowingly mislead Trio’s investment committee
and investors in the ASF in respect to the nature of
the investments being made on behalf of the
ASF;10 and
made false representations in his dealings with
auditors of entities in the Trio Group.11
Mr Richard gave ASIC an enforceable undertaking
under which he agreed to permanently not provide any
financial services.12
Mr Richard was also charged with the following
criminal offences, to which he pleaded guilty:
• engaging in dishonest conduct in relation to financial services knowing that conduct to be dishonest.
This charge related to two separate courses of
conduct and as such constituted two charges;13
and
• making statements which were materially misleading, and known by him to be materially misleading, that were likely to induce persons in Australia
to acquire financial products.
In sentencing Mr Richard, Garling J said:
… at the commencement of his employment with the Trio
Capital Group, Mr Richard was somewhat naïve and
gullible.14
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April 2015
and:
I am not satisfied however this remained the motivation
throughout his time with the Trio Capital Group.15
and:
His conduct bespeaks intentional and knowing participation
in criminality over a long period for substantial person
gain. I am satisfied that this conduct was for nearly all of
the four year period motivated simply by greed.16
On 12 August 2011, Mr Richard was sentenced to
three years and nine months imprisonment. On 20
January 2014, he was released from prison, having been
granted parole after serving his minimum sentence.17
Eugene Liu
In the relevant period Mr Eugene Liu was a director
of both Astarra Asset Management Pty Limited (Astarra
Asset Management) and Astarra Funds Management Pty
Limited (Astarra Funds Management), as well as chief
investment strategist of Astarra Asset Management which
was the investment manager of the ASF. Over 90% of
the ASF’s funds were invested in offshore-based hedge
funds controlled by Mr Jack Flader, who ultimately
controlled Trio.
In September 2012 (after Trio’s collapse), ASIC
served Mr Liu with a notice of hearing.18 In February
2013, ASIC decided to permanently ban Mr Liu from
providing financial services. ASIC particularised its
concerns as to Mr Liu’s breaches of the Corporations
Act 2001 (Cth) as follows:
• ASIC may have reason to believe that he was not
of good fame or character;19
• ASIC may have reason to believe that he was not
adequately trained, or was not competent, to
provide a financial service or financial services;20
• he may not have complied with a financial services law (eg s 1041H (misleading or deceptive
conduct) and s 1041G (dishonest conduct));21
• ASIC may have reason to believe that he was
likely to contravene a financial services law;22
• he may be involved in the contravention of a
financial services law by another person;23 and
• ASIC may have reason to believe that he was
likely to become involved in the contravention of
a financial services law by another person.24
Mr Liu lodged an application with the Administrative
Appeals Tribunal (AAT) for a review of ASIC’s decision.
The issue that the AAT was required to determine was
whether Mr Liu should be permanently banned, and
therefore ASIC’s decision affirmed, or whether the
decision should be varied or set aside and some other
decision substituted in its place.
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April 2015
The AAT affirmed ASIC’s decision to permanently
ban Mr Liu, on the basis that he had breached a financial
services law and was not a person of good fame or
character.25
In reaching its decision, the AAT noted that Mr Liu
was alleged to have:
• been knowingly responsible for drafting false key
statements in respect of the ASF’s investment
objectives and strategy in the ASF’s Product
Disclosure Statement, that clearly misrepresented:
the fact that investors’ funds were being invested
in Mr Flader’s offshore accounts; how Astarra
Asset Management chose its absolute return managers; and Astarra Asset Management’s due diligence process;
• been knowingly responsible for the preparation of
false statements made in the Alternative Investment Management Association Questionnaire (Questionnaire), in respect of the ASF, that was provided
to Aegis Equities Research Pty Ltd (Aegis). Aegis
published a favourable research report, based on
those statements, that was sent to a number of
financial planners, which resulted in $90,280,486
being invested in the ASF;
• failed to inform Trio or Aegis of the fact that
Astarra Asset Management did not comply with
the investment strategy referred to in the Questionnaire; and
• received $396,880 as reward for his involvement
in the scheme giving rise to a conflict of interest.
These payments had not been disclosed.
Tony Maher (formerly known as Paul Gresham)
Mr Tony Maher (formerly known as Mr Paul Gresham)
was not involved directly with the Trio Group. However,
he did assist Mr Richard and Mr Littauer in acquiring the
entities that would eventually form the Trio Group.
Further, Mr Maher was indirectly involved through PST
Management Pty Ltd (PST Management), of which he
was controller and owner. PST Management provided
superannuation fund administration services and investment management services. PST Management was the
investment manager of The Professional Pensions Pooled
Superannuation Trust (Professional Pensions PST).26 In
June 2004, Trio became the trustee of the Professional
Pensions PST.27
In 2007, Mr Maher recommended that unit holders of
the Professional Pensions PST transfer their investment
to the ARP (which was newly-created).28 A majority of
Professional Pensions PST unit holders agreed to that
transfer.29 As mentioned in part 1 of this article, the ARP
was wound up by court order in March 2010.30
61
After the ARP was wound up, ASIC commenced an
investigation into Mr Maher for suspected contraventions of the Corporations Act.31 ASIC’s concerns included
a failure by Mr Maher to: disclose certain information to
Professional Pensions PST unit holders, such as the
change in investment strategy for the Professional Pensions PST;32 and adequately address conflicts of interest
which saw Mr Maher receive financial benefits that were
not disclosed to the trustee or investors of the Professional Pensions PST.33
In response to ASIC’s investigations Mr Maher
agreed to provide ASIC with an enforceable undertaking
to permanently not provide any financial services34 or
take part in the management of a corporation.35
Notwithstanding this enforceable undertaking, ASIC
proceeded to charge Mr Maher with 20 criminal charges
which included making false and misleading statements
which resulted in his business receiving more than
$500,000 in payments.36
The Supreme Court of NSW heard that Mr Maher’s
conduct was “appalling, disgraceful, [and] criminal”.37
Mr Maher pleaded guilty to all 20 charges. On 27 June
2014, Mr Maher was sentenced to two years and one
month in prison.38
Rex Phillpott
From October 2005 to January 2010, Rex Phillpott
was the Chief Executive Officer, a director and secretary
of Trio.39 From April 2007 to January 2010, he was also
a director and secretary of Astarra Funds Management.40
The concerns raised by ASIC related to whether
Trio’s officers had discharged their duties as officers of a
responsible entity. Those duties included:
• the duty to take all steps that a reasonable person
would take, if they were in the officer’s position, to
ensure that the responsible entity complied with
the Corporations Act, the constitution of the MISs
of which Trio was the responsible entity, and the
compliance plan for the MISs;41
• the duty to exercise the degree of care and
diligence that a reasonable person would exercise
if they were in the officer’s position, under s
601FD(1)(b) of the Corporations Act;42 and
• the duty to act in the best interests of the members
of the MIS, and if there is a conflict between the
members’ interest and the interests of the responsible entity, give priority to the members’ interests,
under s 601FD(1)(c) of the Corporations Act.43
In particular, ASIC was concerned about Mr Phillpott’s
involvement in authorising the investment of funds held
by the ASF into the underlying funds and subsequent
dealings with the underlying funds.44 By way of example,
62
one of ASIC’s specific concerns was that investments of
the funds of the ASF were made without any due
diligence or monitoring of the fund managers selected to
manage the investments (as required by the compliance
plan of the ASF). In particular, Mr Phillpott did not,
during his directorship, take any steps to ensure that
Trio:
• obtained or had available any due diligence reports
relating to the selection of fund managers for the
investments in the underlying funds;
• obtained or had available any reports of the
monitoring and supervision of fund managers for
the investments in the underlying funds; or
• prepared or had available any written reports to
the board concerning the committee’s quarterly
reviews of fund managers relevant to ASF.45
Mr Phillpott gave an enforceable undertaking to
ASIC by which he agreed, for a period of 15 years, to
not provide any financial services or take part in the
management of any corporation.46
This enforceable undertaking to ASIC expires on 3
July 2026.
Mr Phillpott also gave an enforceable undertaking to
APRA by which he agreed, for a period of 15 years, to
not be or act as:
• a trustee of a registrable superannuation entity (as
defined in the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act)); or
• a responsible officer of any body corporate that is
a trustee, investment manager or custodian of a
registrable superannuation entity (as defined in the
SIS Act).47
Mr Phillpott also agreed that should he seek to be
appointed to one of the above positions after the expiry
of the enforceable undertaking, he would complete
training (as required by APRA) relating to the duties of
a trustee of a superannuation entity as well as best
practice in managing investments and investment managers.48
This enforceable undertaking to APRA expires on 5
September 2026.
Mervyn Tarrant
Mr Tarrant was the managing director and authorised
representative of Tarrants Financial Consultants Pty Ltd
(Tarrants Consultants), an Australian financial services
licensee which provided financial advice to clients in the
Wollongong region of NSW.49
In 2008 and 2009, on his recommendations, clients of
Mr Tarrant invested about $7.5 million in the ASF. The
money invested was lost.50
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April 2015
Also in 2008 and 2009, Astarra Asset Management
(the investment manager of ASF) made payments totalling over $1.1 million to Tarrants Finance Pty Ltd
(Tarrants Finance). Mr Tarrant was also a director of
Tarrants Finance. Tarrants Finance was an “associate” of
Tarrants Consultants within the meaning of that term in
s 50AAA of the Corporations Act.51
These payments by Astarra Asset Management to
Tarrants Finance were a “marketing allowance” (or
“marketing fee”), calculated by reference to the amount
of funds placed in the ASF.52 (Mr Tarrant disputed that
the payments were a marketing allowance. He contended that the payments were “compensation” for the
cost of implementing the changeover from investing in
another fund to investing in the ASF. This changeover
was said to involve “redeeming the original investment,
repaying the old margin loan, arranging new margin
loans, transferring assets and establishing new bank
account facilities and details”.53)
Tarrants Consultants went into liquidation because of
claims made by clients.54
In 2011, ASIC banned Mr Tarrant from providing
financial services for seven years, on the basis that he
had not complied with a number of financial services
laws and that his banning was warranted.55
Mr Tarrant appealed ASIC’s decision to the AAT. The
AAT affirmed ASIC’s decision to ban Mr Tarrant from
providing financial services for seven years.
The AAT noted that Mr Tarrant had committed
numerous, serious and repeated breaches of financial
services laws that had caused significant loss to the
retirement savings of investors. Although there was no
evidence of dishonesty, there was evidence of “incompetence and negligent, if not wilful, breach”. He had not
expressed any contrition or remorse for his wrongdoing,
but had sought to blame others for the losses. There was
no evidence that he understood the problems and would
reform. In the AAT’s view, “the protection of the public
and the seriousness of the breaches militate[d] in favour
of a lengthy banning order”.56
Mr Tarrant appealed the AAT’s decision to the Full
Federal Court. On 6 February 2015, the court dismissed
the appeal.57
Matthew Littauer
In 1999, Mr Richard had worked with Mr Matthew
Littauer.58 Mr Littauer was a businessman operating a
financial services business overseas.59 Mr Richard approached
Mr Littauer with the opportunity to acquire Astarra
Funds Management.60 Mr Littauer was an original
director of Wright Global and Astarra Funds Management (both holding companies in the Trio Group).61
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April 2015
Mr Littauer hired Mr Liu to work in the Trio Group.62
Mr Littauer appears to have been a central figure in the
initial stages of the establishment of the Trio Group in
Australia.63
In December 2004, Mr Littauer was stabbed to death
in his office in Tokyo, Japan.64 The exact circumstances
around his death are speculative. However, the media
reported that: he was found dead from 11 stab wounds65
in the red-light district of Tokyo in 2004;66 and in
response to a question in court proceedings regarding
how Mr Littauer had come to be murdered, Mr Maher, a
colleague of Mr Littauer said:
He had a run-in with the Yakuza [the Japanese mafia] … he
was big-noting himself and ran into some trouble with
some folks.67
What happened to the investors in the ASF
and the ARP?
There were approximately 6,090 investors affected
by the collapse of the Trio Group. There were essentially
three types of investors, as follows:
• investors who invested through APRA-regulated
superannuation funds (approximately 5,400);68
• investors who invested through SMSFs (approximately 285);69 and
• investors who invested directly (approximately
415).70
Investors who invested through an APRA-regulated
superannuation fund were eligible for compensation
under Pt 23 of the SIS Act, which makes provision for
financial assistance for certain superannuation entities
that have suffered loss as a result of fraudulent conduct
or theft.71 An application for compensation, on behalf of
those investors, was made to the Minister for Financial
Services and Superannuation. In April 2011, the government announced that it would provide approximately
$55 million in compensation to the 5,400 APRAregulated superannuation fund investors.72 The compensation payment is being recovered through the imposition
of a levy on all APRA-regulated superannuation funds.
The SIS Act expressly excludes SMSFs from the
compensation arrangements.73 The rationale behind this
exclusion is that trustees of SMSFs have direct control
over their investments and they are not required to pay
a financial assistance levy which may be imposed on
APRA-regulated superannuation funds.
The investors who invested directly in the ASF or the
ARP were also not eligible for compensation under the
SIS Act. However, where the investor invested on the
advice of an Australian financial services licensee or its
representative, they might be compensated by the licensee’s professional indemnity insurance.
63
Could a Trio-like fraud happen again?
Under the government’s Stronger Super reforms,
APRA-regulated superannuation funds are subject to
much more stringent governance requirements. In particular, since the Trio fraud, both the enhanced trustee
and directors’ duties under ss 52, 52A, 29VN and 29VO
of the SIS Act and the Superannuation Prudential
Standards have raised governance standards, which in
turn should have made fraud within the Australian
superannuation system of the type and on the scale of the
Trio fraud considerably less likely. The Prudential Standards that are particularly relevant are SPS 510 Governance, SPS 520 Fit and Proper, SPS 220 Risk Management,
SPS 521 Conflicts of Interest, and SPS 530 Investment
Governance.
In APRA’s view, these Prudential Standards are
“likely to reduce the likelihood [of a] similar event
occurring”.74 However, as the Parliamentary Joint Committee which investigated the collapse of the Trio Group
acknowledged:
… no regulatory system can deter all fraud.75
In October 2014, APRA released for public consultation draft Prudential Practice Guide SPG 223 Fraud
Risk Management (SPG 223).76 This can be seen as
drawing on the lessons of the Trio collapse from APRA’s
perspective.
In draft SPG 223, APRA states its expectation that an
RSE licensee’s risk management framework, as required
by Prudential Standard SPS 220 Risk Management, will
64
include a fraud risk management framework.77 RSE
licensees will need to review their risk management
framework to ensure that it includes a fraud risk management framework that meets APRA’s expectations in
relation to managing fraud risk.
APRA also expects that there will be alignment
between the fraud risks considered by an RSE licensee
when developing its fraud risk management framework
and those identified for the purposes of determining the
Operational Risk Financial Requirement (ORFR) target
amount.78 RSE licensees will need to consider reviewing the alignment between their fraud risk management
framework and their ORFR target amount.
In a sense, the issue of SPG 223 in its final form will
conclude the Trio saga — apart from the lamentable fact
that approximately $176 million of Australians’ investment funds has been lost, without any prospect of
recovery.
David Elliott
Lawyer
Thomson Geer
[email protected]
www.tglaw.com.au
The author gratefully acknowledges the review of this
article by Scott Charaneka, Head of Superannuation
and Wealth Management, Thomson Geer, and Stanley
Drummond, Adjunct Head of Superannuation and Wealth
Management, Thomson Geer.
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April 2015
Appendix
Summary of enforcement actions
Table 1: Summary of enforcement outcomes other than enforceable undertakings79
Name
Role
Penalty
Trio Capital Limited Trustee of 4 superannuation funds Australian financial services licence
and 1 pooled superannuation trust. ceased.
Responsible entity of 28
managed investment schemes.
Shawn Richard
Director of Trio Capital Limited Sentenced to 3 years and 9 months
in prison.
Director of Astarra Funds
Management Pty Ltd
Director of Astarra Asset
Management Pty Limited
Director of Wright Global
Investments Pty Ltd
Investment Manager of the ASF
Permanent ban from providing
Eugene Liu
Director of Astarra Asset
financial services.
Management Pty Limited
Director of Astarra Funds
Management Pty Ltd
Director of Wright Global
Investments Pty Ltd
Chief Investment Strategist ofAstarra
Asset Management Pty Ltd
Financial adviser
Sentenced to 2 years and 1 month
Tony Maher
Investment Manager of the ARP in prison.
(formerly known
as Paul Gresham)
Mervyn Tarrant
Financial adviser
Banned from providing financial
services for 7 years.
Seagrims Pty Ltd
Financial adviser
Australian financial services licence
cancelled.
Peter Seagrim and
Directors of Seagrims Pty Ltd
Banned from providing financial
Anne-Marie Seagrim Financial advisers
services for 6 months (reduced
from 3 years).
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April 2015
Date
1 November 2011
12 August 2011
31 October 2014
27 June 2014
6 February 2015
19 September 2011
31 August 2012
65
Table 2: Summary of enforceable undertakings given to APRA80
Name
Role
Ban period
Rex Phillpott
Chief Executive Officer of Trio Capital
15 years
Limited
Director of Trio Capital Limited
Company Secretary of Trio Capital
Limited
Member of the Risk and Compliance
Committee of Trio Capital Limited
Cameron
Executive Director of Trio Capital
12 years
Anderson
Limited
Member of the Investment Committee
of Trio Capital Limited
David Andrews
Non-executive director of Trio Capital
10 years
Limited
Chairman of the Board of Trio Capital
Limited
Member of the Investment Committee
of Trio Capital Limited
Chair of the Investment Committee of
Trio Capital Limited
Member of the Risk and Compliance
Committee of Trio Capital Limited
Chairman of the Risk and Compliance
Committee of Trio Capital Limited
David Millhouse
Director of Trio Capital Limited
10 years
Member of the Investment Committee
of Trio Capital Limited
Terrence Hallinan Non-executive director of Trio Capital
8 years
Limited
Lorenzo Macolino Non-executive director of Trio Capital
8 years
Limited
Keith Finkelde
Non-executive director of Trio Capital
6 years
Limited
Member of the Investment Committee
of Trio Capital Limited
David O’Bryen
Non-executive director of Trio Capital
5.5 years
Limited
Member of the Risk and Compliance
Committee of Trio Capital Limited
Chairman of the Risk and Compliance
Committee of Trio Capital Limited
Michael Anderson Non-executive director of Trio Capital
4 years
Limited
John Harte
Non-executive director of Trio Capital
4 years
Limited
Member of the Investment Committee
of Trio Capital Limited
66
Ban begins
6 September
2011
Ban ends
5 September
2026
4 July 2013
3 July 2025
6 September
2011
5 September
2021
29 October
2013
28 October
2023
27 June 2013
26 June 2021
28 June 2013
27 June 2021
12 September
2011
11 September
2017
27 October
2011
26 April 2017
4 July 2013
3 July 2017
4 July 2013
3 July 2017
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April 2015
Natasha Beck
Kurt Groeneveld
John Godfrey
4 years
Non-executive Director of Trio Capital
Limited
Member of the Investment Committee
of Trio Capital Limited
Non-executive director of Trio Capital
3.5 years
Limited
Non-executive director of Trio Capital No expiry date
Limited
Chairman of the Board of Trio Capital
Limited
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April 2015
1 July 2011
30 June 2015
17 October
2013
5 March 2012
16 April 2017
No expiry date
67
Table 3: Summary of enforceable undertakings given
Name
Role
Shawn Richard
Director of Trio Capital Limited
Director of Astarra Funds
Management Pty Ltd
Director of Astarra Asset
Management Pty Limited
Director of Wright Global
Investments Pty Ltd
Investment Manager of the ASF
Tony Maher
Financial adviser
(formerly known Investment Manager of the ARP
as Paul Gresham)
Rex Phillpott
David Andrews
David O’Bryen
Keith Finkelde
Timothy Frazer
68
to ASIC81
Outcome
Date
Permanent enforceable undertaking 3 December 2010
to not provide any financial services.
Permanent enforceable undertaking 1 February 2012
to not be involved in the financial
services industry or manage a
company.
Chief Executive Officer of Trio
Enforceable undertaking to not be
4 July 2011
Capital Limited
involved in the financial services
Director of Trio Capital Limited
industry or manage a company for
Company Secretary of Trio Capital 15 years.
Limited
Member of the Risk and Compliance
Committee of Trio Capital Limited
Non-executive director of Trio
Enforceable undertaking to not be 10 August 2011
Capital Limited
involved in the financial services
Chairman of the Board of Trio
industry or manage a company for
Capital Limited
9 years.
Member of the Investment Committee of Trio Capital Limited
Chair of the Investment Committee
of Trio Capital Limited
Member of the Risk and Compliance
Committee of Trio Capital Limited
Chairman of the Risk and Compliance Committee of Trio Capital
Limited
Non-executive director of Trio
Enforceable undertaking to not be 24 August 2011
Capital Limited
involved in the financial services
Member of the Risk and Compliance industry or manage a company for
Committee of Trio Capital Limited 4 years.
Chairman of the Risk and Compliance Committee of Trio Capital
Limited
Non-executive director of Trio
Enforceable undertaking to not be 24 August 2011
Capital Limited
involved in the financial services
Member of the Investment Commit- industry or manage a company for
tee of Trio Capital Limited
4 years.
Former auditor
Enforceable undertaking to not act as 6 February 2012
a registered company auditor for
3 years.
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April 2015
Natasha Beck
Non-executive director of Trio
Capital Limited
Member of the Investment Committee of Trio Capital Limited
Kilara Financial
Former Investment Manager for Trio
Solutions Pty Ltd Capital managed investment
schemes
Footnotes
1.
D Elliott “The Trio debacle — ‘the largest superannuation
fraud in Australian history’: Part 1” (2015) 27(2) SLB 27.
2.
R v Richard [2011] NSWSC 866; BC201106219 at [1].
3.
Above, n 2, at [2].
4.
Above, n 2, at [2].
5.
Enforceable Undertaking of Shawn Darrell Richard dated 3
Above, n 5, at para 2.4.1(b).
7.
Above, n 5, at para 2.4.1(c).
8.
Above, n 5, at para 2.4.1(d).
9.
Above, n 5, at para 2.4.1(e).
10.
Above, n 5, at para 2.4.1(f).
11.
Above, n 5, at para 2.4.1(g).
12.
Above, n 5, at para 3.1.1.
13.
Above, n 2, at [21].
14.
Above, n 2, at [63].
15.
Above, n 2, at [64].
16.
17.
18.
4 July 2011
Enforceable undertaking to modify
aspects of its compliance culture and
to remedy past compliance concerns
in the provision of financial advice to
retail clients.
22 June 2011
33.
Above, n 27, at para 13.2.
34.
Above, n 27, at para 15.1(a).
35.
Above, n 27, at para 15.1(b).
36.
Australian Securities and Investments Commission 2015 “Former
investment manager pleads guilty to making false statements”
13-293MR (29 October 2013) accessed online 12 February
December 2010 given under the Australian Securities and
Investments Commission Act 2001 (Cth), at para 2.4.1(a).
6.
Enforceable undertaking to not be
involved in the financial services industry or manage a company for 2 years.
37.
2015, www.asic.gov.au.
G Hutchens, Clients hear of fund manager’s ‘criminal’behaviour,
11 December 2012, The Sydney Morning Herald, accessed 11
38.
February 2015, www.smh.com.au.
Professional Planner 2015, Former investment manager jailed,
27 June 2014, accessed online 12 February 2015, www.profes-
39.
sionalplanner.com.au.
Enforceable Undertaking of Rex Phillpott dated 4 July 2011
given under the Australian Securities and Investments Commission Act 2001 (Cth), at paragraph 3.3(a).
40.
Above, n 39, at para 3.3(b).
41.
Above, n 39, at para 8.2(a).
42.
Above, n 39, at para 8.2(b).
43.
Above, n 39, at para 8.2(c).
44.
Above, n 39, at para 5.3.
Above, n 2, at [64].
45.
Above, n 39, at para 8.19.
Australian Broadcasting Corporation, Trio Capital fraudster
Shawn Richards released from prison, 23 January 2014,
accessed online 17 February 2015, www.abc.net.au.
46.
Above, n 39, at para 10.2.
47.
Enforceable Undertaking of Rex Phillpott dated 29 August
2011 given under the Superannuation Industry (Supervision)
Liu v Australian Securities and Investments Commission [2014]
AATA 817; BC201481749 at [6].
48.
Act 1993 (Cth), at para 28(a) and (b).
Above, n 47, at para 29(c) and (d).
19.
Above, n 18, at [18].
49.
Tarrant v Australian Securities and Investments Commission
20.
Above, n 18, at [18].
21.
Above, n 18, at [18].
50.
[2013] AATA 926; BC201316058 at [2].
Above, n 49, at [1] and [3].
22.
Above, n 18, at [18].
51.
Above, n 49, at [25].
23.
Above, n 18, at [18].
52.
Above, n 49, at [159], [201] and [203].
24.
Above, n 18, at [18].
53.
Above, n 49, at [149] and [162].
25.
Above, n 18, at [123].
54.
Above, n 49, at [141].
26.
PJC Report, at [2.22].
55.
Above, n 49, at [4].
27.
Enforceable Undertaking of Tony Maher (formerly known as
Paul Anthony Gresham) dated 1 February 2012 given under the
Australian Securities and Investments Commission Act 2001
(Cth), at paragraph 6.5(d).
56.
Above, n 49, at [387].
57.
Tarrant v Australian Securities and Investments Commission
(2015) 317 ALR 328; 104 ACSR 275; [2015] FCAFC 8;
BC201500349 at [148].
28.
Above, n 27, at para 8.2.
58.
Above, n 18, at [64].
29.
Above, n 27, at para 8.2.
59.
Above, n 18, at [32].
30.
Above, n 27, at para 11.2.
60.
Above, n 18, at [32].
31.
Above, n 27, at para 12.1.
61.
PJC Report, Table 2.2.
32.
Above, n 27, at para 13.1.
62.
Above, n 18, at [33].
australian superannuation law bulletin
April 2015
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63.
Above, n 18, at [64].
David Andrews dated 6 September 2011 given under the
64.
Association of ARP Unitholders Inc, Submission from the
Association of ARP Unitholders Inc to the Inquiry into the
Superannuation Industry (Supervision) Act 1993 (Cth); Enforceable Undertaking of David Millhouse dated 29 October 2013
Performance of the Australian Securities and Investments
given under the Superannuation Industry (Supervision) Act
Commission dated 21 October 2013, page 3.
1993 (Cth); Enforceable Undertaking of Terrence Hallinan
A Langford-Wilson 2014, Trio exposed: life as a puppet on a
string, 4 November 2014, Illawarra Mercury, accessed online
11 February 2015, www.illawarramercury.com.au.
S Washington 2010, Trio Capital intrigue stranger than fiction,
dated 27 June 2013 given under the Superannuation Industry
8 April 2010, The Age, accessed online 11 February 2015,
Undertaking of Keith Finkelde dated 12 September 2011 given
under the Superannuation Industry (Supervision) Act 1993
67.
www.theage.com.au.
Above, n 37.
68.
PJC Report, at Executive Summary.
October 2011 given under the Superannuation Industry (Super-
69.
PJC Report, at Executive Summary.
vision) Act 1993 (Cth); Enforceable Undertaking of Michael
70.
PJC Report, at Executive Summary.
Anderson dated 4 July 2013 given under the Superannuation
71.
PJC Report at 3.25.
Industry (Supervision) Act 1993 (Cth); Enforceable Undertak-
72.
PJC Report at 3.31.
ing of John Harte dated 4 July 2013 given under the Superan-
73.
SIS Act, s 229(1)(aa)(i).
nuation Industry (Supervision) Act 1993 (Cth); Enforceable
74.
APRA, Submission to the Parliamentary Joint Committee on
Corporations and Financial Services: Inquiry into the collapse
Undertaking of Natasha Beck dated 1 July 2011 given under
Enforceable Undertaking of Kurt Groeneveld dated 17 October
75.
of Trio Capital, 24 August 2011, paras [29]–[33].
PJC Report, para [4.81].
76.
Submissions closed on 19 January 2015.
Act 1993 (Cth); Enforceable Undertaking of John Godfrey
77.
APRA, draft SPG 223, para [6].
dated 4 March 2012 given under the Superannuation Industry
78.
APRA, draft SPG 223, para [10].
79.
R v Richard [2011] NSWSC 866; BC201106219; Liu and
Australian Securities and Investments Commission (2013) 60
65.
66.
80.
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(Supervision) Act 1993 (Cth); Enforceable Undertaking of
Lorenzo Macolino dated 28 June 2013 given under the Superannuation Industry (Supervision) Act 1993 (Cth); Enforceable
(Cth); Enforceable Undertaking of David O’Bryen dated 27
the Superannuation Industry (Supervision) Act 1993 (Cth);
2013 given under the Superannuation Industry (Supervision)
81.
(Supervision) Act 1993 (Cth).
Australian Securities and Investments Commission 2015, Trio
and Astarra, accessed online 12 February 2015 www.asic.gov.au;
AAR 5; [2013] AATA 117; BC201309080; Liu and Australian
Securities and Investments Commission (2013) 62 AAR 273;
[2013] AATA 864; BC201316312; Liu and Australian Securities and Investments Commission [2014] AATA 817; BC201481749;
Enforceable Undertaking of Shawn Richard dated 3 December
Enforceable Undertaking of Tony Maher (formerly known as
February 2012 given under the Australian Securities and
Paul Anthony Gresham) dated 1 February 2012 given under the
Investments Commission Act 2001 (Cth); Enforceable Under-
Australian Securities and Investments Commission Act 2001
taking of Rex Phillpott dated 4 July 2011 given under the
(Cth); Professional Planner 2015, Former investment manager
Australian Securities and Investments Commission Act 2001
jailed, 27 June 2014, accessed online 12 February 2015
www.professionalplanner.com.au; Tarrant v Australian Securities and Investments Commission (2013) 62 AAR 192; [2013]
(Cth); Enforceable Undertaking of David Andrews dated 10
AATA 926; BC201316058; Tarrant v Australian Securities and
Investments Commission (2015) 317 ALR 328; 104 ACSR 275;
[2015] FCAFC 8; BC201500349; Australian Securities and
of David O’Bryen dated 24 August 2011 given under the
Investments Commission 2015, 11-134AD ASIC acts re: Trio
August 2011 given under the Australian Securities and Invest-
Seagrims licence suspended and directors banned, accessed
online 12 February 2015 www.asic.gov.au.
Australian Prudential Regulation Authority 2015, Enforceable
UndertakingRegister,accessedonline11February2015www.apra.gov.au;
ments Commission Act 2001 (Cth); Enforceable Undertaking
Enforceable Undertaking of Rex Phillpott dated 6 September
2011 given under the Australian Securities and Investments
2011 given under the Superannuation Industry (Supervision)
Commission Act 2001 (Cth); Enforceable Undertaking of
Act 1993 (Cth); Enforceable Undertaking of Cameron Ander-
Kilara Financial Solutions Pty Ltd dated 22 June 2011 given
son dated 4 July 2013 given under the Superannuation Industry
under the Australian Securities and Investments Commission
(Supervision) Act 1993 (Cth); Enforceable Undertaking of
Act 2001 (Cth).
2010 given under the Australian Securities and Investments
Commission Act 2001 (Cth); Enforceable Undertaking of Tony
Maher (formerly known as Paul Anthony Gresham) dated 1
August 2011 given under the Australian Securities and Investments Commission Act 2001 (Cth); Enforceable Undertaking
Australian Securities and Investments Commission Act 2001
(Cth); Enforceable Undertaking of Keith Finkelde dated 24
of Timothy Frazer dated 6 February 2012 given under the
Australian Securities and Investments Commission Act 2001
(Cth); Enforceable Undertaking of Natasha Beck dated 4 July
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