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ASIC Advisory 11-213: Former Bell Potter employee charged with dishonest conduct

by Desanka.Vukelich 30. September 2011 11:03

Wednesday 28 September 2011

A former Bell Potter Securities Limited employee has been charged with 5 counts of dishonest conduct involving more than $1.8 million, following an ASIC investigation.

Lawson Stuart Donald, 36, of Maroubra, worked as a client adviser for the stockbroking company Bell Potter between 1 February 2003 and 21 April 2008.

ASIC alleges Mr Donald dishonestly used his position as an employee of Bell Potter with the intention of directly or indirectly gaining an advantage for himself, or someone else, by rebooking share trades between September 2005 and March 2008.

Rebooking is the transferring of trades from one client account to another client account.

Specifically, ASIC alleges that between 28 September 2005 and 12 March 2008 Mr Donald rebooked profitable share trades from a client account to two accounts controlled by him and then sold those shares for a profit. Further, Mr Donald rebooked non-profitable share trades from the two accounts controlled by him to a client’s account, thereby avoiding a loss to the accounts controlled by him.

The total value of the rebookings exceeded $1.8 million.

Mr Donald’s conduct was brought to ASIC’s attention by Bell Potter.

Mr Donald faces a maximum penalty of 5 years imprisonment, a $220,000 fine or both, for each charge.

Mr Donald was legally represented but unable to attend Sydney’s Downing Centre Local Court on Tuesday, 27 September 2011 when the matter was mentioned.

The matter was adjourned until 25 October 2011. Mr Donald is not required to appear on this date.

The Commonwealth Director of Public Prosecutions is prosecuting the matter.

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ASIC

ASIC Advisory 11-211: Stuart Ariff found guilty on criminal charges

by Desanka.Vukelich 30. September 2011 09:59

Monday 26 September 2011

Former liquidator Stuart Ariff was today found guilty by a jury in the New South Wales District Court on all 19 criminal charges brought by ASIC.

The offences relate to Mr Ariff's conduct while he was the liquidator of HR Cook Investments Pty Ltd (in liquidation) ("HR Cook Investments") during the period 9 June 2006 to 29 March 2009.

Mr Ariff was found guilty on 13 charges under section 176A of the NSW Crimes Act concerning the transfer of funds totalling $1.18 million with intent to defraud HR Cook Investments.

Mr Ariff was also found guilty on six charges under section 1308(2) of the Corporations Act 2001 of making false statements in documents lodged with ASIC recording receipts and payments relating to HR Cook Investments.

The NSW Crimes Act charges each carry a maximum penalty of 10 years imprisonment. The Corporations Act 2001 charges each carry a maximum fine of $22,000 or imprisonment for five years or both.

Mr Ariff's conditional bail was revoked and he was remanded into custody.

The matter will return to Parramatta District Court on 25 November 2011 for sentencing.

The matter was prosecuted by the Commonwealth Director of Public Prosecutions.

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ASIC

ASIC Advisory 11-210: Former Port Pirie financial adviser charged

by Desanka.Vukelich 30. September 2011 08:14

Monday 26 September 2011

Mr Trevor Wayne Carll, of Port Pirie, South Australia, has appeared in the Port Pirie Magistrates Court on one charge of deception and 27 charges of dishonest dealings with documents, brought by ASIC.

The charges arose from ASIC’s investigation into Mr Carll’s conduct as a financial adviser. Mr Carll was an authorised representative of three Australian financial services licensees.

It is alleged that Mr Carll deceived two clients of these licensees about how he intended to use documents signed by them and dishonestly arranged for the clients’ assets to be held as security for his personal margin loan facility. It is also alleged that on 27 occasions, Mr Carll provided false documents intending to deceive Macquarie Bank Limited to release funds to him, some of which he paid to his clients.

If convicted, each offence carries a maximum penalty of ten years’ imprisonment.

The alleged offences occurred between 21 June 2004 and 20 May 2010 while Mr Carll was an authorised representative of the following Australian financial services licensees:

  •  
    • Financial Wisdom Ltd;
    • Financial Planning Services Australia Pty Ltd; and
    • Genesys Wealth Advisers Ltd.


ASIC’s action against Mr Carll is consistent with the Commission’s focus on ensuring fair and efficient financial markets.

The Commonwealth Director of Public Prosecutions is prosecuting the matter which returns to the Port Pirie Magistrates Court on 25 October 2011.

Background


On 16 February 2011, ASIC permanently banned Mr Carll from providing financial services (see ASIC Advisory 11-27AD ASIC permanently bans former Port Pirie financial adviser).

Mr Carll’s conduct was brought to ASIC’s attention by Genesys Wealth Advisers Ltd who cooperated fully with ASIC’s investigation.

As a result of Mr. Carll’s actions, the clients lost control of their retirement funds and suffered a financial loss of $52,931.71. However, following negotiations between the Australian financial services licensees and financial institutions concerned, arrangements have been made for the return of the clients’ funds and compensation for their financial loss.

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ASIC

Inhouse Counsel Newsletter Vol 14 Iss 10 released

by Desanka.Vukelich 30. September 2011 08:04

Volume 14, Issue 10 of the Inhouse Counsel newsletter has been released.

This Issue contains the following:

  • 'Generic top level domains — your name coming soon!' by Kerry Awerbuch and Belinda Findlay of Blake Dawson
  • 'Australia’s clean energy future — Part 2: Renewable energy' by Damien Lockie, Barrister
  • 'Important new procedures for approving executive remuneration' by Deborah Chew and John Bassilios of Hall & Wilcox

Plus:

  • News
  • Index to Volume 14
  • Table of articles
  • Table of cases
  • Table of statutes

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Inhouse Counsel

Financial Services Newsletter Vol 10 Iss 4 now available

by Desanka.Vukelich 29. September 2011 15:07

Volume 10, Issue 4 of the Financial Services Newsletter is now available.

This issue contains the following articles:

  • ‘Draft Future of Financial Advice legislation released’ by Eugene Chen, Adrian Verdnik and Harry New of Hall & Wilcox
  • ‘The best interests duty — we have the detail at last and the devil is certainly in there!’ by Mark Radford of Radford Lawyers
  • ‘Investment Manager Regime — draft legislation released’ by Peter Norman, Fadi Khoury and Anna Wilson of Norton Rose
  • ‘A fund manager’s guide to the new personal property securities regime’ by Emma Stapleton and Brendan Ivers of McMahon Clarke Legal
  • ‘ASIC releases proposed good practice guidance on advertising financial products and advice services’ by Fadi Khoury and Daniel Jung of Norton Rose
  • ‘ASIC v AAT: Deferred tax assets excluded for purposes of AFSL financial conditions’ by Greg Drew of Ninth Floor Selborne Chambers, Sydney

And on the Bulletin Board:

  • ‘The best interests adviser test — fathoming the depths’ by Michael Vrisakis of Freehills

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Financial Services Newsletter

Service 38 of Bankruptcy Law and Practice released

by Desanka.Vukelich 29. September 2011 10:08

Service 38 of Bankruptcy Law and Practice has been released.

Updates to this Service are as follows:

Commentary

The following chapters have been reviewed and updated:

• Chapter 2: Bankruptcy Practice in the Federal Court of Australia

• Chapter 3: Bankruptcy Practice in the Magistrates’ Court of Australia

• Chapter 5B: Superannuation

• Chapter 5C: Taxation

• Chapter 10: Bankruptcy Notices

• Chapter 16: Committees of Inspection

• Chapter 40: Offences

• Chapter 42: Service

Legislation

• Bankruptcy Regulations Schedule 1 Form 1 has been reissued

• Bankruptcy (Registration Charges) Act 1997 has been removed

• Bankruptcy (Estate Charges) (Amount of Charge Payable) Determination 2010 has been superseded by Bankruptcy (Estate Charges) (Amount of Charge Payable) Determination 2011

• Transitional Provisions of the Evidence Act 1995 have been removed

• Bankruptcy (Fees and Remuneration) Determination 2010 (No 2) is amended by Bankruptcy (Fees and Remuneration) Determination 2010 (No 2) Amendment Determination 2011 (No 1)

Forms

The following forms have been updated:

• Form 6 reissued

• Form 8 reissued

• Form 14 issued

• Form 18 reissued

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Bankruptcy Law and Practice

Service 37 of Kelly and Ball's Principles of Insurance Law released

by Desanka.Vukelich 29. September 2011 10:04

Service 37 of Kelly and Ball’s Principles of Insurance Law has been released.

In Service 37, the authors updated the following chapters to reflect recent developments in case law, policy and legislation:

 

• Chapter 5

— Updated [5.0040] “The final contract”

— Updated [5.0040.15] “Terms not drawn to the insured’s attention”

— Updated [5.0110] “Terms imposing obligations or creating conditions precedent to liability”

— Updated [5.00110.1] “Warranties”

— Updated [5.00110.10] “Are there ‘special’ rules in relation to warranties?”

— Updated [5.0120] “Conditions precedent”

— Updated [5.0130] “Breach of warranty”

— Updated [5.0210] “Election: suggested limits to its application”

— Updated [5.0290.10] “Third principle: take account of the main object or commercial purpose of the contract”

— Updated [5.0330] “A special approach to insurance contracts?”

 

• Chapter 11

— Updated [11.0010] “Scope of this chapter”

— Updated [11.0060] “Obligations on authorised insurers”

— Updated [11.0060.5] “Appointment of auditor and actuary”

— Updated [11.0070] “Investigations”

— Updated [11.0120] “Review of decisions”

— Updated [11.0361] “Investigations and winding up”

— Updated [11.0362] “Carries on insurance business”

— Updated [11.0363] “Licences”

— Updated [11.0364] “Conditions of Licence”

— Updated [11.0365] “Actuaries”

— Updated [11.0366] “Statutory Funds of Life Insurers”

— Updated [11.0367] “Prudential’s supervision by Reserve Bank”

— Updated [11.0368] “Winding up and statutory management”

 

• Chapter 15

— Chapter 15 has undergone a complete rewrite

 

Cross-references to Australian Insurance Law Annotated have been added to paragraphs in Chapters 5 and 11

 

• The How to Use guide card has been updated

• A consolidated index has been provided

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Kelly and Ball Principles of Insurance Law

Service 19 of Australian Insurance Law (Annotated) released

by Desanka.Vukelich 29. September 2011 09:57

Service 19 of Australian Insurance Law (Annotated) has been released.

Updates to this Service are as follows:

Legislation:

• Medical Indemnity Act 2002 amended by:

— Human Services Legislation Amendment Act 2011 No 32

• Medical Indemnity Regulations 2003 amended by:

— Human Services Legislation Amendment Regulations 2011 (No 1) No 120

Codes of Practice:

• Financial Ombudsman Service – Terms of Reference inserted

Practice Notes:

• Insurance Enquiries and Complaints – Practice Note: Exchange of Information removed

• Insurance Enquiries and Complaints – Practice Note: Non-disclosure and Misrepresentation removed

• Practice Note No 2: PN2 Dispute Handling Processes and Information Exchange inserted

• Practice Note No 3: PN3 Surveillance and Recording Evidence inserted

• Practice Note No 4: PN4 Systemic Issues Procedures inserted

Commentary:

• The Current Issues guide card has been updated with the following article:

— Will UK Insurance Law Reform Overtake Australian Marine Insurance Reform?

• The Insurance Contracts Act 1984 annotations have been updated:

— Annotations to ss 26, 45, 48 and 54 have been updated

• The Marine Insurance Act 1909 annotations have been updated:

— Annotations to ss 45 and 61 have been updated

• The Overview of the Aviation Insurance guide card has been updated

Also in this service:

• The Publisher’s Note and Preface have been updated

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Legislation

Insolvency Law Bulletin Vol 12 Iss 2 now available

by Desanka.Vukelich 23. September 2011 10:29

Volume 12, Issue 2 of the Insolvency Law Bulletin is now available.

This issue:

  • Masi Zaki and Mark Addison, of Dibbsbarker, write "Liquidator's pleadings struck out for failure to establish a proper factual basis to cause of action against directors"
  • Martin Hirst of Gadens Lawyers writes "On the beat: The boot's on the other foot -can you hear me Major Tom?"
  • Lee Aitken writes "No more Alsatias - the transnational enforcement of insolvency judgments"
  • David Richardson of HWL Ebsworth Lawyers and Anthony Lo Surdo, Barrister, summarise the case of Re Newtronics Pty Ltd (in liq)
  • Amanda Carruthers of Lewis Holdway Lawyers asks "Can penalty interest carry creditors over the threshold?"
  • Dr David Goldman and Michael Rose of Norton Rose Australia write "New Zealand liquidators obtain search warrant in Australia

 

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Insolvency | Insolvency Law Bulletin

Australian Corporation Law ASIC Releases: Service update 194 now online

by Desanka.Vukelich 22. September 2011 16:38

Service update 194 (September 2011) of the Australian Corporation Law ASIC Releases service is now available online.

Additions include:

  • New Regulatory Guides: RG 226 Guidance on ASIC market integrity rules for capital and related requirements: ASX and ASX 24 markets; and RG 227 Over-the-counter contracts for difference: Improving disclosure for retail investors
  • New and updated Information Sheets
  • New Reports: REP 244 Response to submissions on CP 161 Proposed ASIC market integrity rules for capital and related requirements: ASX, ASX 24 and Chi-X markets; and REP 245 Review of general insurance claims handling and internal dispute resolution procedures

 

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ASIC



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