Count class action dismissed in Federal Court
A subsidiary of Australia’s second-largest advice licensee Count has successfully defended a class action in Federal Court regarding a self-managed superannuation fund (SMSF).
In a brief ASX statement on 27 May, the licensee said: “Today the Federal Court of Australia dismissed a claim brought as a class action against Count Limited’s subsidiary Count Financial Limited (Count Financial). Count Financial defended the claim and denied any wrongdoing.”
It is understood the matter is related to whether Count Financial and its authorised representatives at Centenary Financial breached fiduciary and statutory duties or engaged in misleading or deceptive conduct by continuing to receive commissions post-Future of Financial Advice (FOFA) reforms between the relevent period of 21 August 2014-21 August 2020.
The applicant was the corporate trustee of a self-managed superannuation fund (Hunter SMSF), operated for the benefit of Roslyn Hunter, Neal Hunter and their sons, Shaun Hunter and Dene Hunter. The case was brought by Piper Alderman.
The applicant acquired four financial products following the provision of financial advice from Count Financial, and both upfront and trail commissions were payable on these. While it contended Count breached fiduciary duties, contravened related best interest and client priority statutory duties, and engaged in misleading or deceptive conduct, it did not contend the products were unsuitable or should not have been recommended.
In the Federal Court of Victoria, Justice Halley said: “Count did not owe any fiduciary duties to the Applicant with respect to the Relevant Period Advice or was not otherwise liable for any alleged breach of fiduciary duties by the Applicant’s Representatives.
“The Applicant has not established that Count contravened its statutory supervisory obligations pursuant to s 961L of the Corporations Act in relation to the provision of any of the Relevant Period Advice; and
“The Applicant has not established that Count engaged in any misleading or deceptive conduct in contravention of s 1041H of the Corporations Act, s 12DA of the Australian Securities and Investments Act 2001 (Cth) (ASIC Act) or s 18 of the Australian Consumer Law (ACL) in Sch 2 to the Competition and Consumer Act 2010 (Cth) in relation to the provision of any of the Relevant Period Advice.”
The court ordered the amended originating application filed on 16 December 2020 otherwise be dismissed and the applicant is to pay the respondent’s costs, as taxed or agreed.
AUTHOR
Laura Dew
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