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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 australian superannuation law bulletin 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. australian superannuation law bulletin 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 australian superannuation law bulletin 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 australian superannuation law bulletin 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. australian superannuation law bulletin 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). australian superannuation law bulletin 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 australian superannuation law bulletin 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 australian superannuation law bulletin 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. australian superannuation law bulletin 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 69 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. 70 (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. 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