ASIC has announced that it has commenced proceedings in the Federal Court of Australia against two superannuation trustees in NAB’s wealth management division, NULIS Nominees (Australia) Limited (NULIS) and MLC Nominees Pty Ltd (MLC Nominees).
The action relates to the deduction of fees from members by the trustees of two regulated superannuation funds for financial services in circumstances where the members did not receive any services and in some cases were not obliged to pay the fee (“fees for no service”). ASIC also claims the trustees misled members about their rights not to pay the fee.
ASIC alleges NULIS and MLC Nominees deducted approximately $33m Plan Service Fees from 220,000 members of MLC MasterKey Business and MLC MasterKey Personal Super who did not have Plan Adviser (No-Adviser Members). NAB also deducted approximately $67m Plan Service Fees from 300,000 members of MLC MasterKey Personal Super where Plan Advisers were not required to provide services and members did not receive services (or any services they could not otherwise obtain for free).
ASIC is seeking from the Federal Court declarations of contravention and a civil penalty under;
- s912A(1)(a) of the Corporations Act 2001 by failing to ensure that its financial services were provided efficiently, honestly and fairly;
- ss 12DB, 12DA of the Australian Securities and Investments Commission Act 2001 for false or misleading representations;
- s912A(1)(c) of the Corporations Act by failing to comply with financial services laws, including issuing defective disclosure documents within the meaning of s1022A of the Corporations Act and failing to exercise the degree of skill, care and diligence as a prudent trustee would exercise and failing to act in the best interests of members in breach of its general law duties and the Superannuation Industry (Supervision) Act 1993 when making the fee deductions and alleged misrepresentations to members.
It is expected that the defendants will respond in accordance with their submission to the Financial Services Royal Commission.
