TheAustralian Securities and Investments Commission(ASIC) has lost a Full Federal Court appeal against a decision to reinstate the securities dealer licences of Saxby Bridge Financial Planning.
In March of this year the Administrative Appeals Tribunal (AAT) ruled that Saxby Bridge and ABS Securities should be reinstated and a banning order against the group’s director Jeffrey Braysich be revoked.
Braysich, who has spent over $1 million defending the case, says he is pleased with the win, and is now looking at a “number of ventures” proposed prior to the appeal of the AAT decision.
“We are now just waiting to have our licence finalised by ASIC,” Braysich says, referring to a number of conditions – including more effective disclosure of fees and commissions and of any interest that might influence advice – imposed on their licence by the AAT.
Braysich says the group will also be lodging an Australian Financial Services Licence application prior to the March deadline.
The dealer licences were revoked and Braysich banned in November 2001 following an ASIC investigation that found that the groups were involved in the marketing of tax schemes to their clients in a manner that created serious concern.
However in March the AAT upheld an appeal by the groups against the ASIC decision, finding that although Saxby Bridge and ABS did breach the Corporations Law in some instances, the Tribunal’s “overwhelming impression was that Mr Braysich sought to run a business which complied with its obligations under the Corporations Law and offered a quality service to its clients”.
While the appeal by ASIC against the AAT decision was made on points of law, Justice Branson, one of the three judges presiding over the appeal, in her judgement found that sections 849 and 851 of the Corporations Act cannot be contravened by the holder of a dealer’s licence, when the conduct in question was undertaken by an authorised representative and not directed by the licence holder.
Atanaskovic Hartnell partner Tony Hartnell, representing Saxby Bridge in the appeal, says while this represented only one judge’s view and was not the ratio of the case, this interpretation is now on the public record, and is “contrary to ASIC’s view and everything they have been espousing for years”.
A spokesperson for ASIC says the regulator is still considering the implications of the decision and so declined to comment but it has been ordered to pay Saxby Bridge’s costs.
