Olive Financial Markets Pty Ltd and Australian Securities and Investments Commission

The Administrative Appeals Tribunal, presided over by Deputy President Bernard J McCabe, considered an appeal by Olive Financial Markets Pty Ltd against a decision by the Australian Securities and Investments Commission (ASIC) to cancel its financial services licence. The dispute centred on Olive Financial Markets' contraventions of its obligations under the Corporations Act 2001, specifically concerning its conduct in providing financial advice and the hawking of financial products.

The Tribunal was required to determine whether Olive Financial Markets had contravened its obligations under section 912A(1) of the Corporations Act 2001, which mandates that a financial services licensee must act in the best interests of its clients. This included assessing whether personal advice provided to retail clients, in breach of section 961B, was given by its representatives, including salespeople, customer service staff, and Mr Morrison, in a manner that genuinely considered the clients' objectives, financial situation, and needs. The Tribunal also had to consider the issue of hawking, specifically whether initial calls made by employees of Share Express or Marketing constituted "unsolicited" calls in contravention of section 992AA of the Corporations Act.

The Tribunal found that Olive Financial Markets failed to act in the best interests of its clients. This conclusion was based on evidence that the advice provided, including information in presentations, unsigned statements of advice, and finalised documents, consistently recommended only one product, an MDA product, without considering or referencing alternative investments that might be more suitable for individual clients. The Tribunal noted that salespeople provided advice without a detailed understanding of clients' personal circumstances, indicating a lack of genuine consideration for their best interests. While the issue of hawking remained contested, the Tribunal was satisfied that the uncontested conduct alone warranted cancellation of the licence due to its seriousness and the need for deterrence.

Consequently, the Tribunal affirmed ASIC's decision to cancel Olive Financial Markets' licence. Despite acknowledging Olive's progress in remedying detected shortcomings and its willingness to undertake further steps, the Tribunal concluded that this progress did not outweigh the gravity of the contraventions.