Australian Securities and Investments Commission v Diversa Trustees Limited [2023] FCA 1267

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Diversa Trustees Limited [2023] FCA 1267 File number: VID 573 of 2021

Judgment of: BUTTON J

Date of judgment: 24 October 2023

Catchwords: SUPERANNUATION – where defendant was trustee of superannuation fund – where defendant had contractual arrangements for the administration, promotion and provision of platform functions in relation to the fund – where ASIC alleged that the defendant knew or ought to have known of certain "vices" in relation to the business practices of a particular adviser group who joined members to the fund – whether knowledge of entities performing sponsor, promotion, administration and platform provision services were attributable to the defendant – whether s 769B(3) of the Corporations Act 2001 (Cth) applies where the state of mind is not held by the same person who engaged in the conduct CORPORATIONS – financial services – where defendant was the holder of an Australian Financial Services Licence – where ASIC alleged contraventions of ss 912A(1)(a) and (ca) of the Corporations Act 2001 (Cth) – obligation of licensee to do all things necessary to ensure that the financial services covered by the license are provided efficiently, honestly and fairly – obligation of licensee to take reasonable steps to ensure that its representatives comply with the financial services laws – where trustee contracted with other licensees for provision of administration, promotion and provision of platform functions in relation to the fund – whether s 912A(1)(a) applies where financial service of giving general advice said to be provided by another licensee – effect of s 911B(3) of the Corporations Act 2001 (Cth) on who provides financial services – whether the second licensee was a "representative" of the defendant for the purposes of s 912A(1)(ca) of the Corporations Act 2001 (Cth) AGENCY – attribution of knowledge of agents – whether services performed by the entities with which the defendant had contractual arrangements for the administration, promotion and provision of platform functions in relation to the fund were services performed as agent of the defendant or services provided to the defendant – where a subset of the contracts contained "no agency" clauses – no evidence of actual workings of the relationships between the defendant and the entities – evidence did not link knowledge of entities with tasks said to be undertaken as agent