The Administrative Appeals Tribunal (AAT) has affirmed ASIC’s decision to refuse to grant a limited Australian financial services (AFS) licence to Superannuation Warehouse Australia Pty Ltd (SWA).
On 31 January 2019, the AAT found that the sole director and nominated Responsible Manager of SWA, Mr Johann Heinrich Preller, failed to demonstrate:
an adequate understanding of the general obligations that would apply to a licensee; and
failed to disclose matters that the AAT considered were materially relevant; including a failure to disclose past breaches of other laws to ASIC.
The AAT’s decision took into account information referred to ASIC from the Australian Taxation Office about the audits of self-managed superannuation funds (SMSF) undertaken by Mr Preller. This information was provided to ASIC after the hearing closed but before the AAT had made its decision. The AAT agreed with ASIC’s view that this information was relevant to the AAT’s consideration of whether a licence should be granted or refused.
This decision follows an earlier AAT ruling affirming ASIC’s decision to refuse Mr Michael David Watson a limited AFS licence (19-003MR).
ASIC Executive Director of Assessment and Intelligence, Mr Warren Day, said, ‘These decisions reinforce the importance of providing full and frank disclosures to ASIC and the weight placed on an applicant’s past conduct in financial services or under other legislation in determining a licence application.
‘Applicants, and anyone else involved in preparing and lodging applications with ASIC, are on notice that a failure to disclose all relevant information runs the risk of the application being refused.
‘While some applicants may be relatively new to the licensing regime, we emphasise that granting a licence is a privilege and not a right and that making a false or misleading statement in a licence application may result in a criminal prosecution. Further, if we find out after we have granted a licence, we may cancel it, or seek other remedies’, Mr Day said.
