Australian Securities and Investments Commission v Tower Australia Ltd [2003] FCA 660

FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v Tower Australia Ltd [2003] FCA 660 TRADE PRACTICES – misleading and deceptive conduct in the provision of financial services – declaratory relief sought pursuant to s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth), s 12DA of the Australian Securities and Investments Commission Act 1989 (Cth) and s 52 of the Trade Practices Act 1974 (Cth) TRADE PRACTICES – consent orders providing for the Court to note that ASIC has accepted an enforceable undertaking in accordance with s 93AA of the Australian Securities and Investments Commission Act 2001 (Cth) – undertaking within the powers of ASIC to accept Australian Securities and Investments Commission Act 2001 (Cth), ss 12BAB, 12DA, 12GLA(2)(c), 93AA Australian Securities and Investments Commission Act 1989 (Cth), ss 12BAB, 12DA, 12GLA(2)(c) Trade Practices Act 1974 (Cth), ss 51AF, 52, 87(1) Australian Competition and Consumer Commission v Woolworths (South Australia) Pty Ltd [2003] FCA 530 applied AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v TOWER AUSTRALIA LTD N3025 OF 2003 SACKVILLE J SYDNEY 4 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N3025 OF 2003

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

PLAINTIFF

AND: TOWER AUSTRALIA LTD

DEFENDANT

JUDGE: SACKVILLE J

DATE OF ORDER: 4 JULY 2003

WHERE MADE: SYDNEY

THE COURT DECLARES THAT: 1. The Defendant contravened section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act 2001") or section 12DA of the Australian Securities and Investments Commission Act 1989 (Cth) ("ASIC Act 1989") (as to conduct occurring on or after 1 July 1998) and section 52 of the Trade Practices Act 1974 (Cth) (as to conduct occurring on or before 30 June 1998) by: (a) providing from about 1993 documents entitled "Statement of Account" in the form of or to the effect of Exhibit D (other than the last page thereof) that contained statements as to redemption or withdrawal benefits which differed from the redemption or withdrawal benefits which were payable in accordance with a proper application of the terms of the relevant policy constituting the relevant products set out in Schedule 1 to the orders ("Blue Ribbon Products") to a number of policy holders and beneficiaries of one or more of the Blue Ribbon Products; (b) delivering from about 1993 to a number of policy holders and beneficiaries of one or more of the Blue Ribbon Products a letter (either attaching a cheque or confirming a direct deposit into a nominated account), stating in substance that the cheque represents the sum total of that policy holder's or beneficiary's benefits upon such redemption which amounts differed from the redemption or withdrawal benefits which were payable in accordance with a proper application of the terms of the relevant policy constituting the relevant Blue Ribbon Products.