ASIC sues Diversa Trustees over First Guardian deficiencies

ASIC has commenced civil penalty proceedings in the Federal Court against superannuation trustee Diversa Trustees, regarding the First Guardian Master Fund. 

ASIC alleges Diversa failed to conduct adequate due diligence before allowing its members to invest and failed to conduct adequate ongoing monitoring. 

Further, ASIC alleges that Diversa failed to enforce a 50 per cent holding limit it imposed for First Guardian and failed to have systems and processes in place to ensure that there was compliance with that holding limit.

Around $300 million was invested into First Guardian from 2020 to 2024 through superannuation funds for which Diversa was trustee.

At different times between July 2020 to July 2024, Diversa was the trustee for the Powerwrap Master Plan, Praemium SMA Superannuation Fund, YourChoice Super and Australian Practical Superannuation. YourChoice and AusPrac were sub-plans of the MAP Master Superannuation Plan prior to 1 December 2020. After 1 December 2020, YourChoice and Ausprac became sub-plans of the OneSuper Fund.

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ASIC alleges that Diversa failed to:
•    Exercise the same degree of care, skill and diligence as a prudent superannuation trustee would
•    Act in the best financial interests of its members
•    Exercise due diligence in developing, offering and reviewing investment options
•    Do all things necessary to ensure the financial services covered by its Australian financial services licence were provided efficiently, honestly and fairly.

In April 2025, when the liquidators were ordered to wind up First Guardian, Diversa had approximately $243 million invested in First Guardian, associated with 2,055 superannuation members.

ASIC deputy chair Sarah Court said: “This is another significant action relating to the First Guardian collapse which is an ongoing enforcement priority for 2026.

“Superannuation trustees must put their members first by acting with care and skill and by carrying out proper checks on investment options made available on their platforms.

“This action furthers ASIC’s commitment to seek compensation for the victims of the Shield and First Guardian collapses wherever possible. Our first priority has been preserving assets for the benefit of investors to the extent they are available, and now we’re taking action to hold those we consider responsible to account with 11 cases underway in the Federal Court against 19 defendants.”

ASIC is seeking orders for compensation, declarations and civil penalties from the Court.

A statement from Diversa said: "Diversa has fully cooperated with ASIC's investigation and will be vigorously defending ASIC's claim.

"ASIC’s claim has not altered Diversa’s view that it considers the First Guardian fund's losses to have resulted from fraudulent conduct. The relevant conduct only came to light long after applications for and withdrawals had been frozen by Falcon Capital, the responsible entity of First Guardian. Diversa has been actively monitoring First Guardian since it suspended applications and withdrawals in May 2024 and has been working constructively with regulators since it became an area of focus leading up to the proceedings ASIC initially brought against Falcon Capital and in relation to First Guardian in February 2025.

"Diversa will continue to work hard to support members and the service providers essential to the operation of our products. Diversa does not expect ASIC’s claim or the First Guardian liquidation to affect members who did not directly invest in First Guardian."

The action follows action by ASIC against Equity Trustees in August regarding due diligence failures around Shield Master Fund. Equity Trustees oversaw the investment of around $160 million of retirement savings into Shield over 2023 and 2024 through its fund.

According to ASIC, Equity Trustees, as trustee for the AMG Superannuation Fund and Super Simplifier, approved the four classes of Shield as investment options on the NQ Super and Super Simplifier platforms.

In October, ASIC subsequently opetd to expand proceedings against Equity Trustees to seek compensation for members following Macquarie’s agreement to pay $321 million over Shield failings.

This followed Macquarie Investment Management agreeing to fully remediate all of its affected superannuation members $321 million over its failings related to Shield.