Australian Securities and Investments Commission v Commonwealth Bank of Australia [2022] FCA 1149

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2022] FCA 1149 File number: VID 415 of 2020

Judgment of: ANDERSON J

Date of judgment: 29 September 2022

Catchwords: CORPORATIONS – conflicted remuneration – application of ss 963A, 963E, 963L and 963K of the Corporations Act 2001 (Cth) (Act) to certain alleged benefits provided by the First Defendant (CBA) and the Second Defendant (CFSIL) (collectively, Defendants) – whether the alleged benefits relating to the distribution of a superannuation product were conflicted remuneration within the meaning of s 963A – whether CBA contravened the prohibition against a financial services licensee to accept conflicted remuneration pursuant to s 963E of the Act – whether CFSIL breached the prohibition on product issuers or sellers giving conflicted remuneration pursuant to s 963K of the Act – where the alleged benefits are not benefits within the meaning of the conflicted remuneration provisions – where the alleged benefits, in any event, had no prospect of influencing the choice of financial product or financial product advice provided to retail clients – contraventions not established – whether the Defendants could, in any event, rely upon the "grandfathering exception" provided for by s 1528 of the Act – where the arrangement between the Defendants were entered into before 1 July 2013 – where CFSIL is a "platform operator" – where the alleged benefits were not provided by CFSIL in its capacity as a "platform operator" within the meaning of regulation 7.7A.16 of the Corporations Regulations 2001 (Cth) – grandfathering exception applies – proceeding dismissed with costs

Legislation: Acts Interpretation Act 1901 (Cth) Corporations Act 2001 (Cth) Corporations Amendment (Future of Financial Advice Measures) Act 2012 (Cth) Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 (Cth) Evidence Act 1995 (Cth) Financial Services Reform Act 2001 (Cth) Treasury Laws Amendment (Ending Grandfathered Conflicted Remuneration) Act 2019 (Cth) Corporations Regulations 2001 (Cth) Corporations Amendment (Further Future of Financial Advice Measures) Bill 2012 (Cth) Corporations Amendment (Further Future of Financial Advice Measures) Bill 2012 (Cth) Financial Services Reform Bill 2001 (Cth)