Simeone Pty Ltd and Australian Securities and Investments Commission

Simeone Pty Ltd and Australian Securities and Investments Commission [2024] AATA 819 (23 April 2024)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2022/2128
Re:Simeone Pty Ltd
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

File Number(s): 2022/1678
Re:Antonio Simeone
APPLICANT

AndAustralian Securities and Investment Commission
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:23 April 2024
Place:Canberra

The decisions under review are affirmed.
………………[sgd]……………….
Senior Member O'Donovan
Catchwords
Provision of financial product advice – which entity or person provided the advice – whether the person providing the advice was licensed to provide the advice – whether the person providing the advice was competent to provide the advice – whether the person was a fit and proper person to provide financial services or to perform any function as an officer of an entity that carries on a financial services business – Person not adequately trained and not competent to provide financial services – Ban period of five years for person appropriate – Australian Financial Services licensee’s failure to have adequate arrangements in place for management for conflicts of interest in relation to activities undertaken by the licensee or a representative of the licensee in the provision of financial services as part of the financial services business of the licensee – Australian Financial Services licensee’s failure to ensure representatives are adequately trained and competent to provide the financial services covered by the license – Cancellation of Australian Financial Services Licence
Legislation
Corporations Act 2001 ss 764A 766A, 766B 911A, 912A, 912C, 912E, 913BB, 913BA, 915C, 920A
Superannuation Industry (Supervision) Act 1993 s 19
Cases
Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
REASONS FOR DECISION
Senior Member O'Donovan

On 28 February 2022 the respondent made two decisions which had very significant ramifications for Antonio Simeone.
The first decision was to ban Mr Simeone for a period of five years from providing financial services and performing certain specified functions involved in the carrying on of a financial services business. The second decision was a decision to cancel, subject to certain specifications, the Australian financial services licence held by his company Simeone Pty Ltd.
The respondent, the Australian Securities and Investment Commission (ASIC), was prompted to take these steps by Mr Simeone’s conduct in relation to a number of clients of what Mr Simeone refers to as the ‘Simeone Group’. The Simeone Group was a collection of companies which provided a range of financial services to clients. The Simeone Group included Simeone Pty Ltd as well as other companies in which Mr Simeone was involved.
Each of the clients of the Simeone Group had similar experiences with Mr Simeone:
(a)They approached Mr Simeone for assistance with financial matters;
(b)Mr Simeone explained to them that he had derived significant benefits from utilising a self-managed superfund (SMSF);
(c)each client set-up or re-activated an SMSF into which they tipped funds from conventional superannuation funds or other investments;
(d)a proportion of the money in the SMSFs was invested in property trusts set up, and to varying degrees, controlled by Mr Simeone.
Through these arrangements, clients obtained access to cash or other benefits which would have been difficult or impossible to access if they had left their superannuation balances in independently managed superannuation funds. Mr Simeone facilitated these benefits by giving loans from a lending pool available in one of the property trusts he was involved in, or by making available other property trust investment vehicles. This was done in circumstances where more conventional credit providers had not or would not provide loans.
In relation to some of the loans, it is unclear whether there was ever any expectation that the loan from the trust would need to be repaid. This raised the prospect that the loans and the investment transactions were mere book entries which permitted the client to immediately access funds invested in superannuation. At the root of ASIC’s concern was and is the suspicion that Mr Simeone was engineering the early release of his clients’ superannuation in circumstances which were unlawful.
ASIC’s contention is that when Mr Simeone presented to his clients the structures laid out in paragraph [4] above, he was:
(a)Providing financial services withing the meaning of section 766A of the Corporations Act 2001 (Corporations Act);
(b)Acting as a representative of Simeone Pty Ltd;
(c)Providing financial product advice under the Australian Financial Services Licence held by Simeone Pty Ltd;
(d)was breaching a financial services law by engaging in misleading and deceptive conduct contrary to section 1041H of the Corporations Act. The offering of the investments was misleading and deceptive because it implied that it was legitimate to access superannuation funds in this way when it was not, and there was an implicit representation that there were not risks associated with the arrangements when there were.
Separately ASIC allege that Simeone Pty Ltd was not observing its statutory obligations. In particular it failed to have in place appropriate conflict of interest arrangements required by the Corporations Act. Further, on one occasion when Mr Simeone refused to pay compensation to a former client in accordance with a Financial Ombudsman Service (FOS) determination.
It is ASICs contention that these matters collectively and separately, in relation to both Simeone Pty Ltd and Mr Simeone:
(a)demonstrate that the applicants are not competent to provide one or more financial services (pursuant to s 920A(1)(da) of the Corporations Act);
(b)demonstrate that the applicants are not fit and proper persons to provide one or more financial services (pursuant to s 920A(1)(d) of the Corporations Act);
(c)allow the forming of a belief that the applicants are likely to contravene a financial services law (pursuant to s 920A(1)(f) of the Corporations Act).
These are the statutory thresholds which, if passed, enliven the power to make a banning order. ASIC further contends that this conduct is of a kind which justifies the exercise of discretion such that Mr Simeone should be banned from providing any financial services for a period of five years and banned from managing, supervising or auditing the provision of a financial service and the provision of training about a financial service or product.
The making of a banning order against Mr Simeone also triggers the discretion to cancel an Australian financial services licence (AFS licence) held by Simeone Pty Ltd. ASIC contend that:
(a)Simeone Pty Ltd may not have complied with its obligations under s 912A (concerning conflict of interest, financial services laws, taking reasonable steps to ensure representatives comply with financial services laws, services are provided efficiently, honestly and fairly and ensure that representatives are adequately trained) (s915C(1)(a));
(b)The fit and proper person test in s 913BA may not be satisfied regarding Simeone Pty Ltd and its AFS licence (s 915C(1)(b)); and
(c)There is reason to believe that Simeone Pty Ltd is likely to contravene its obligations under s 912A (concerning conflict of interest).
Mr Simeone does not dispute that after meeting with him his clients re-structured their affairs, began utilising SMSFs which then placed investments in property trusts associated with him. He doesn’t dispute that in some cases the relevant property trust made available funds which allowed his clients to access funds through loans.
Mr Simeone’s resistance to the banning order and licence cancellation is that he never gave financial product advice and to the extent that his clients were ever given financial product advice it did not come from him or Simeone Pty Ltd. Mr Simeone’s view is that the trustees of the SMSFs are responsible for the investment decisions they made. In Mr Simeone’s mind he never gave financial product advice and as far as he understood the matter, Simeone Pty Ltd was not licenced to give financial product advice in relation to superannuation. He was an insurance broker and that is what the AFS Licence covered. If clients of the Simeone Group needed a financial adviser, there were others within the Simeone Group who were appropriately licenced and qualified to give the advice and at the appropriate time clients were referred to the persons qualified to give that advice. In relation to the investments in the property trusts which occurred after his client’s had set up their SMSFs, Mr Simeone’s position is that firstly that the investment decision was a matter for the trustees of the relevant SMSFs and secondly that any lending from the property trust loan pools were genuine. From his perspective he was trying to help people who were, in most cases, in serious financial distress. He did not regard himself as providing them with financial services or financial advice under the financial services licence which his company Simeone Pty Ltd held. At the time he did not think that he was doing anything wrong.
In relation to the ASIC delegate’s finding that there were shortcomings in the operations of Simeone Pty Ltd and in particular that the company breached the requirement in s 912A(1)(aa) of the Corporations Act that the licensee have in place ‘adequate arrangements for the managing of conflicts of interest…’, Mr Simeone’s view was and is that because he charged a flat annual fee for services to clients of the Simeone Group there was no risk of him having a conflict of interest. No further arrangements needed to be in place.
In relation to ASIC’s adverse view concerning Simeone Pty Ltd’s response to the determination of the Financial Ombudsman Service (FOS), Mr Simeone’s view is that the FOS involved itself in a private dispute which could never have been the subject of any legitimate complaint to the FOS. He was within his rights to ignore the adverse determination because the FOS was being used improperly by the complainant.
Mr Simeone feels extremely mistreated by ASIC. On his view of the world, he was a person who worked diligently for a company licensed to give advice in relation to insurance. This exposed him to a range of clients with more complex needs who he sought to assist by acting as their financial ‘general practitioner’. Recognising his own limitations, both in terms of expertise and licensing, he would either refer them to outside experts who would give the client the appropriate advice or he would partner with experts within the ‘Simeone Group’, a network of companies with experts in various fields including tax, bookkeeping and accounting, auditing, and financial advice. In this way the clients were served by a range of appropriately licensed companies with the relevant expertise.
Mr Simeone’s position seems to be that if he was giving financial product advice to his clients, it wasn’t pursuant to Simeone Pty Ltd’s licence and it wasn’t on behalf of Simeone Pty Ltd. It was an inadvertent overstepping of the role he had created for himself as a representative of the Simeone Group, a group of companies which provided a holistic service to clients. I am prepared to consider the banning orders and licence cancellation on this basis.
Implicitly, the applicants contend that the threshold for imposing banning orders or cancelling Simeone Pty Ltd’s AFS licence has not been met. Alternatively, if it has been met, any non-compliance was inadvertent and represents a genuine mistake by a decent person who should be assisted to comply rather than punished. Accordingly, the discretion should be exercised in a restrained way.
In my assessment the decision under review should be affirmed. It is unnecessary for me to determine as ASIC contends, whether the applicants engaged in misleading and deceptive conduct in giving the advice that was given. The applicants’ failings are much more fundamental. Mr Simeone’s understanding of his legal responsibilities was so poor that he was not even aware that he was giving financial product advice when he was dealing with his clients. He regarded himself as essentially unregulated when he was inducing his clients to make dramatic changes to their financial affairs which would have a profound impact on their financial future. Equally, his understanding of what constituted a conflict of interest was so poor that he was unable to even identify the potential for a conflict when he guided client’s investments into property trusts in which he had an interest in and in some cases significant control over. Simeone Pty Ltd is legally responsible for Mr Simeone’s level of ignorance of his responsibilities.
I am satisfied that by encouraging his clients to move funds out of conventional superannuation funds and into SMSFs, Mr Simeone was providing financial product advice. I am satisfied that Mr Simeone was giving financial product advice which he was not competent to provide. The advice he gave and the structures he encouraged allowed his clients to use superannuation funds for non-post retirement expenditure. At the time he gave this advice he was so ignorant of the financial regulatory framework in which he was working that he did not know that he was giving financial product advice. He knew he was unqualified to give financial product advice outside of the insurance sphere. His belief at the time was that he did not have any licence which authorised him to give such advice.
I am satisfied that this conduct establishes that the applicant is not a fit and proper person to provide financial services or to perform any function as an officer of an entity that carries on a financial services business. I am satisfied that it establishes that Mr Simeone is not adequately trained and is not competent to provide financial services. Satisfaction of those thresholds is sufficient to engage the discretion to impose the banning orders. Given how fundamental Mr Simeone’s failings are, I am satisfied that the ban period of 5 years selected by ASIC is appropriate.
Simeone Pty Ltd is tainted by this because it had an obligation to ensure that its representatives were adequately trained and were competent to provide the advice they gave. It failed to discharge that obligation. A cancellation of the AFS licence is appropriate.
For the reasons set out below, the decisions the subject of these applications are both affirmed.
I have structured my reasons as follows.
First, I set out the evidence which is available to me. It consists of a vast quantity of documents which are the product of the ASIC investigation and additional documents identified by Mr Simeone as relevant. The only witness who gave evidence at the hearing of the application was Mr Simeone.
Second, I set out my findings of fact.
Third, I outline the statutory threshold for making banning orders and consider whether the applicants’ conduct meets those thresholds.
Finally, I identify the discretionary matters relevant to my decision to affirm the delegate’s decisions and whether there are matters raised by Mr Simeone about the propriety of his conduct more generally which favour a shorter banning order or no banning order at all.
Evidence
ASIC’s case is entirely documentary. No live witnesses were called to support its case. That choice may have been the result of the fact that when Mr Simeone had the benefit of legal representation, the factual basis on which the ban would be determined was largely agreed. However, shortly before hearing Mr Simeone terminated his lawyers’ retainers and ran his case himself. The result was that up until a few days before the hearing ASIC believed that there was very little of a factual nature in dispute. However, by the time the matter came on for hearing Mr Simeone’s position was that ASIC was put to proof on every factual matter alleged. However, by the time the evidence closed at the hearing it was clear that there was very little of a factual nature that was disputed by Mr Simeone.
The evidence consisted of the following:
(a)Mr Simeone’s oral evidence given at the hearing and on which he was cross examined; and
(b)The exhibits identified in the schedule to this decision.
Factual findings
On 4 June 1986 the company Simeone Insurance Brokers Pty Ltd ACN 008 102 921 was registered. At the time the company’s name reflected the fact that it provided insurance broking services. Mr Simeone was a director of that company.
On 23 January 2004 ASIC issued an Australian financial services licence to the company. The licence identified Mr Simeone as a key person. Since 23 January 2004 Mr Simeone has been an authorised representative of the company.
At the hearing Mr Simeone explained that his understanding of the company’s licence was that it allowed him to give financial product advice in relation to insurance and to deal in financial products consisting of insurance but nothing more than that. To the extent that the licence authorised him to provide financial product advice in relation to superannuation, the licence only covered the insurance component of superannuation products. I accept that evidence insofar as it concerns Mr Simeone’s subjective understanding of what he was authorised by his licence to do.
On 15 March 2011 the company changed its name to Simeone Pty Ltd and at some point in time Mr Simeone decided that he wanted to move beyond insurance broking and provide a broader service to people. He developed a business model which operated under the banner of the Simeone Group.
According to a document dated 6 January 2020, which Mr Simeone said he would provide to clients, the practice can be thought of as a financial general practice clinic, providing holistic financial health care. The practice was led by a consulting financial general practitioner who was supported by seven divisional teams as follows:
(a)Accounting and tax;
(b)Bookkeeping and ledger;
(c)Fire and general insurance;
(d)Life and personal insurance;
(e)Investment and superannuation;
(f)Finance and loans; and
(g)Estate and legal.[1]
[1] Exhibit R16.
Clients who attended at the premises of the Simeone Group and agreed to holistic financial care underwent the Simeone Process. It consisted of the following:
(a)Introduction phase – introducing to the client the Simeone approach to financial services, and fee options;
(b)Engagement phase – engagement with the client once supporting documents are considered;
(c)Financial X-Ray – compiling a financial snapshot of the client’s current financial situation;
(d)Documentation phase – seeking, obtaining and collating all relevant financial documentation;
(e)Broking phase – approaching and negotiating options from preferred and suitable providers;
(f)Presentation phase – presenting and assisting clients to understand the various options and to choose options;
(g)Implementation phase – implementation of the chosen options;
(h)Management phase – managing the arrangement with the client over the engagement period;
(i)Financial Check-up phase – reviewing the arrangement.[2]
[2] Exhibit R16.
Mr Simeone was conscious that he did not have skills and qualifications and appropriate registrations in all of the necessary areas to provide such a comprehensive service, so he formed relationships which enabled him to refer matters to appropriate specialists. Sometimes the expertise was available within the Simeone Group. For example, the company that became Simeone Accounting and Tax Pty Ltd was registered on 17 October 2007 and appropriately qualified people were engaged to deliver tax and accounting services.[3]
[3] Transcript p 89 & 130.

In Mr Simeone’s mind this enabled him to provide his clients with a comprehensive service while keeping within the limits of his own expertise and within what he regarded as the quite limited terms of Simeone Pty Ltd’s financial services licence.
As will be seen when Mr Simeone’s client interactions are examined more closely, he strayed well beyond the limits of his expertise and what he believed Simeone Pty Ltd was licensed to provide. The fundamental problem was that Mr Simeone did not appreciate that when he thought he was having a general discussion about investment strategies that had worked for him in the past, he was actually giving the client financial product advice.
To understand the concept of ‘financial product advice’ it is helpful to briefly outline the regulatory regime which the Corporations Act lays out in Chapter 7.
Legal framework
Section 911A(1) relevantly provides as follows:
…a person who carries on a financial services business in this jurisdiction must hold an Australian financial services licence covering the provision of the financial services.
A financial services business means a business of providing financial services.
Section 766A(1) states that a person provides a financial service when they:
(a)provide financial product advice; or
(b)deal in a financial product.
A superannuation interest is specified to be a financial product (s 764A(1)(g)). A ‘superannuation interest’ has the same meaning as it is given under the Superannuation Industry (Supervision) Act 1993 (SIS Act), being a beneficial interest in a superannuation entity. A superannuation entity includes a regulated superannuation fund. SMSFs are regulated superannuation funds (s 19 SIS Act).
Property trusts are also financial products.[4]
[4] A unit in an unlisted property trust is a financial product by virtue of s764A(1)(b) of the Corporations Act if it is a registered managed investment scheme (which is usually the case), or s764A(1)(ba) if it is not registered.
Pursuant to section 766B(1) financial product advice includes a recommendation or a statement of opinion that:
·Is intended to influence a person or persons in making a decision in relation to a particular financial product or class of financial products, or an interest in a particular financial product or class of financial product; or
·Could reasonably be regarded as intended to have such an influence.
Subsections 766B(2)-(4) of the Corporations Act set out that there are two types of advice that can be given - ‘general advice’ and ‘personal advice’. Personal advice is advice that is ‘given or directed to a person in circumstances where the provider has considered one or more of the person’s objectives, financial situation and needs’ or ‘a reasonable person might expect the provider to have considered one or more of those matters’.
Putting these provisions together leads to the conclusion that, if after an analysis of his client’s affairs, Mr Simeone was making statements of opinion that could be reasonably be regarded as intended to have an influence in relation to superannuation or property trusts, then he was giving financial product advice and his business was a financial services business.
Before turning to Mr Simeone’s dealings with specific clients it is worth recording two things.
First, the evidence available to me concerns Mr Simeone’s dealings with five clients. All five clients, after meetings with Mr Simeone, ended up with an SMSF. All of those SMSFs invested in unit trusts which Mr Simeone was associated with.
Second, when asked by ASIC about his discussions with clients on the topic of SMSFs and property investments, Mr Simeone said:
‘if we think that the client should consider [SMSFs] as an option, we indicate it as an option’. ‘We say, ‘Do you know enough about a self-managed superfund, what advantages it can provide? Because I believe strongly in clients managing their own financial affairs with a, with a coach, with a general practitioner like me. I’m into financial coaching’.[5]
[5] Exhibit R50, p 49.
Mr Simeone was asked if he refers his clients onto a financial adviser who is authorised to provide SMSF advice. Mr Simeone stated:
‘Not necessarily. I said this is what I know. This is what is available from providers that we use on a regular basis. And this is the freedom and the advantages that you will have if you establish your own. And we will help you administer it and be compliant with it.’[6]
[6] Exhibit R50, p 53.
When asked at what point a client receives advice about whether or not an SMSF is suitable for their circumstances, Mr Simeone stated:
‘they have to do their own research. I just point them to the fact that there is a lot of material on the web, put out by ASIC.’[7]
[7] Exhibit R50, p 54.
Mr Simeone also said that he told his clients:
‘I’ve had [an SMSF] and it served me well, because I’ve got control over my own money. And it, I’ve found it beneficial for me…I tell them about my experience, that I, I lost 33 per cent of my, the fund that was exposed to [the GFC] but I didn’t lose any money when, on the part of my fund that was invested in property. So I give them a personal example of where I’ve found it advantageous to have one’…’I’m not giving them advice. The only advice I can give is personal experience…I talk about my own [experience]. If that can be construed as advice – but I’m not giving advice. I’m telling, I’m sharing as if it were two friends sharing, you know, this is why I, this is my experience with.’[8]
[8] Exhibit R50, p 54.
Subject to examining the particular circumstances in which such statements were made, I am satisfied that a person in Mr Simeone’s position, describing in favourable terms his experiences with property trusts and SMSFs, can be reasonably regarded as intending to influence clients in making a decision about financial products. Such conduct meets the definition of financial product advice. It is in this context that the reported experience of the five clients of the Simeone Group should be assessed.
THE FIVE CLIENTS
Mr Boram and Ms Kinkead
In the second half of 2016 Mr Robert Boram and Ms Jeanette Kinkead met with Mr Simeone. At the point at which Mr Boram and Ms Kinkead went to see Mr Simeone they were suffering financial stress. Mr Boram, a handyman, had lost a significant maintenance contract and had limited income. They needed assistance to manage their existing loans and to utilise Mr Boram’s earning potential.
Mr Simeone had a discussion with them about financial matters and the terms of that discussion were recorded as follows:
‘We discussed with Robert and Jeanette the opportunity of establishing their family Self-Managed Super Fund (SMSF) which is a very effective tool to control their super benefits and the way they are invested. We looked into the overall advantages to using an SMSF as a tax effective investment vehicle. We prepared a scenario document in order to discuss the possible alternatives and move forward with the establishment of the fund.’[9]
[9] Exhibit R22.
This is recorded in a document headed ‘Simeone’ which also references Simeone Pty Ltd and AFSL 247480. The document was signed by both clients on 10 September 2016.[10]
[10] Exhibit R22.
Following the signing of that document, an SMSF was set up for them and funds were transferred out of their existing superannuation funds and moved into the SMSF. There were also discussions about the purchase of a maintenance business and associated equipment and how that might be financed. There was also discussion of investments in property trusts which Mr Simeone was associated with. The content of these discussions is not disputed in any significant way by Mr Simeone.
When the applicant gave evidence about his dealings with Mr Boram and Ms Kinkead he said:
‘at 11 o’clock Saturday 10 September, Rob and Janette attended appointment, they seen the document that the team had prepared for signing…We discussed the acquisition of the Agrison tractor and slasher and the Husqvarna ride-on mower, and we agreed to proceed and that financing the acquisition would be either by private loan, a consolidated bank loan secured by their home with the existing bank, CBA, a consolidated bank loan secured by their home with a new bank, Bank SA, a straightforward equipment finance with a first equipment finance lender Sander or Macquarie, fast equipment finance or such, or as a last resort, a rent to buy option like GoGetta. They also indicated their interest in the Ivy Way project [a property trust in which Mr Simeone was involved] and like the idea of participating. And after exploring the equitable and transparent Simeone approach, they indicated that they would be willing to participate via their SMSF.’[11]
[11] Transcript p 147.
The assistance subsequently provided by the Simeone Group included negotiating a debt consolidation with the Commonwealth Bank. It also provided assistance in purchasing a business for Mr Boram to manage. This assistance was described as follows:
Simeone as accountants and financial advisors, brokers & managers have assisted Rob and Jeanette to negotiate the purchase of 100% of the shares in and all vehicles, tools and equipment of M & C Cocca Pty Ltd for a total payment of $129,000 as an ongoing concern.[12]
[12] T3.23 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 812.
On 16 September 2016 Mr Boram signed a letter of appointment in favour of Simeone Financial Services Group, Simeone Pty Ltd – AFSL: 247480 as ‘financial services advisers’ for Jeanette Kinkead.
On 3 November 2016 Mr Boram approved an investment by the SMSF in Administrative Incentivised Management Systems ‘to assist in the administration and management of $150,000’.
Administrative Incentivised Management Systems (AIMS)
In order to understand what follows it is necessary first to understand what the Administrative Incentivised Management Systems Trust (AIMS) is. AIMS is a unit trust. It does not hold property directly. It invests in other unit trusts (including unit trusts set up by Mr Simeone). Administrative Incentivised Management Systems Pty Ltd is the trustee for AIMS. Mr Simeone is the sole the director. In addition to holding units in property trusts, AIMS also has a pool of funds which can provide loans to unit holders.
ASIC’s view is that the client investments in AIMS were for the purpose of enabling them to take out loans without any repayment obligation thus allowing the client to access their superannuation early through a disguised investment. While I am satisfied that investments in AIMS allowed some participants to access superannuation funds for purposes which are not consistent with the goals of the superannuation system, I am not satisfied that the arrangement was as blatant as ASIC asserts. Critical to any simple access arrangement would be an understanding that money borrowed by the client did not have to be re-paid. The purchasing of units and the taking out of loans would effectively be book entries for the purpose of disguising the release of funds. Mr Simeone has always denied that was the nature of the transactions. According to Mr Simeone, clients like Mr Boram and Ms Kinkead were given units in the AIMS trust in a conventional way which they still own. The debts incurred are commercial debts which ought to be repaid and remain outstanding. On the material available to me I am not able to determine definitively what the repayment arrangements were when loans were advanced from the AIMS trust to unit holders. I am not satisfied that on the various occasions when a client of the Simeone Group invested in AIMS it was simply a means of making a disguised withdrawal of funds from the superannuation system.
I am however satisfied that the investment in the AIMS unit trust was something done on the advice of Mr Simeone. I am satisfied that Mr Simeone had a discussion with either Mr Boram or Ms Kinkead or both about the investment. This discussion encouraged Mr Boram and/or Ms Kinkead to invest in AIMS and constituted financial product advice. While I accept that SMSF trustees are responsible for the decisions made on where to invest the funds under management that does not mean Mr Simeone did not give them financial product advice in relation to the AIMS investment. Given the huge range of possible investments in the world, and the conversations Mr Simeone admits he was having with the clients, I am prepared to infer that Mr Boram and Ms Kinkead decided to invest in a unit trust which Mr Simeone had associations with as a result of financial product advice from him.
Given Mr Simeone’s association with AIMS, there was a conflict of interest in him giving advice that influenced the Mr Boram and Ms Kinkead to invest in the unit trust.
Mr Simeone denies that the advice he gave was under the license held by Simeone Pty Ltd. I am prepared to accept that was his subjective view. However, he was giving financial product advice and I will assess the breaches of the Corporations Act on that basis.
On the evidence available to me I am not in a position to work out what the ultimate wash-up of the SMSF’s investment in AIMS was or what has happened to the funds borrowed to purchase the business. I do not know whether Mr Boram and Ms Kinkead still hold valuable units in the AIMS trust or not. In those circumstances I will proceed on the assumption that the transactions are genuine. Even in those circumstances, where the investment in AIMS is a genuine transaction and the loan was a genuine transaction, and not just a sham to immediately liberate cash from accumulated superannuation, Mr Simeone’s behaviour breached his obligations. I explain my reasons for this conclusion more fully below.
Ultimately the bulk of the funds transferred into AIMS were used to purchase the maintenance business. Mr Boram worked in the business but it ultimately failed.
Antonio Pedicini and Despina Pedicini
Antonio Simeone and Antonio Pedicini’s father had dealings with each other in the late 80’s and the early 90’s. Antonio Pedicini first became a client of Mr Simeone by purchasing insurance through him.
In 2014, Antonio and his wife were in financial difficulty and sought advice from Mr Simeone. They dealt directly with him, and his advice was that they should create an SMSF, transfer funds out of their industry super funds and invest in AIMS.[13] On 2 December 2014 they established an SMSF. Initially $30,000 of the SMSF funds were invested in AIMS and $30,000 was invested in a different fund. This it seems was on the advice of an employee of another company in the Simeone Group - Renato Lovisa[14]. However, after direct requests from Mr Simeone, Mr Pedicini transferred sums out of the other fund and into AIMS.[15] I am satisfied that on that occasion it was Mr Simeone who gave the financial product advice.
[13] T3.29 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 848-852.
[14] Transcript p 318.
[15] T3.29 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 848-852.
As their financial position deteriorated, the Pedicini’s began borrowing money from Mr Simeone to pay their rent. Mr Pedicini did not understand how the transactions were structured but he understood the rent payments were a loan with interest payable and that AIMS was somehow involved. Mr Simeone also offered another property investment to Mr Pedicini which Mr Pedicini declined.
When examined by ASIC Mr Simeone stated that he offered the clients a means by which they would put money into the AIMS trust and if there was a gap in the rent, the lending pool from AIMS would extend the difference. The intention was that the arrangement would continue until the clients could make the rental payments on their own.[16]
[16] T3.29 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 848-852.
The ASIC delegate formed the view that the arrangement described by Mr Simeone was an offer to pay rent from superannuation.
Between 2017 and 2020 the Pedicini's borrowed $59,015.19 from AIMS. The total outstanding balance owing to AIMS including interest was $59,024.04 as at 28 February 2022. No effort was made by Mr Simeone to recover the debt. The delegate inferred that in truth the borrowings were sourced from the Pedicini's SMSF and there was never an intention that the borrowings be repaid.
Mr Simeone denies that any such arrangement existed.
I am not satisfied that on the evidence available to me that the arrangement was as crudely put together as was found by the ASIC delegate. I am prepared to accept that the loans were genuinely loans and money is owed by the Pedicini’s to the AIMS trustee. It is however obvious that the investment in AIMS was appealing to Mr Pedicini because it liberated funds to pay his rent. Funds that were meant to be reserved for retirement were being moved out of investments for the future to more liquid investments. This was done on advice from Mr Simeone. I am satisfied that Mr Simeone gave the Pedicini’s financial product advice. He gave advice that they invest in products in which he had a personal involvement.
Mr Simeone was unaware at the time that he was giving financial product advice and made no attempt to comply with the statutory requirements which regulate the giving of such advice.
Mr Binh Ly and Ms Muoi Lam
Mr Binh Ly and Ms Muoi Lam dealt with Mr Simeone in relation to insurance issues for their business in mid-2016.
On 21 October 2016 Mr Simeone sent Mr Ly an email detailing the financial services that Mr Simeone was providing him under a Financial Services Management Agreement. He noted the following:
(a)We have resuscitated your SMSF that your previous accountants were going to close;
(b)We will now transfer the accumulation from MLC back into your SMSF;
(c)We will recommend that you and Muoi contribute as much as possible;
(d)This will firstly achieve a reduction in the tax liability of both you and Muoi
(e)Also, the accumulation can be invested as you like but we will favour property investments; and
(f)As explained, we have the Ivy Way residential project which you can invest in.
The delegate records that Mr Simeone stated that he recommended that Mr Ly use his SMSF for wealth creation and investments and talked about the owning of commercial property through the SMSF.
Mr Simeone is also recorded as agreeing that Mr Ly saw him because he required finance (he wanted more capital) and that Mr Simeone offered to assist him. In their subsequent dealings I am satisfied that Mr Simeone provided to Mr Ly and Ms Lam as trustees of their SMSF financial product advice.
An SMSF was set up by Mr Ly and Ms Lam and funds were invested into AIMS and then into the 13 Diagonal Road Unit Trust which issued units to Mr Simeone and entities associated with him as well as to the trustee of Mr Ly and Ms Lam’s SMSF.[17] The moneys subscribed were used to purchase a property at 13 Diagonal Road Cavan. The goal according to Mr Simeone was for Mr Ly and Ms Lam’s SMSF to eventually acquire all of the units in the property so that Mr Ly and Ms Lam (through their SMSF) became the sole owners.
[17] Transcript p 171-2.
After a range of dealings between Mr Simeone and Mr Ly in around April 2017, I am satisfied that:
(a)The Ly and Lam SMSF transferred $50,000 to AIMS;
(b)Subsequently 50,000 units in the Diagonal Road Unit Trust were issued to the Ly and Lam as trustees for their SMSF;
(c)Over time AIMS transferred roughly $45,000 to Mr Ly’s business account.
The delegate inferred that the $45,000 was a loan from AIMS which was funded by the Ly and Lam investment in AIMS. The delegate also inferred that there was never an intention that the loan be repaid and that the loans were a means of accessing superannuation. Mr Simeone denied this in general terms.
For present purposes I am prepared to proceed on the basis that the transactions recorded were genuine business transactions. I am not satisfied that the trustees of the SMSF were not permitted to make property investments (provided they were fixed interest) and I am not satisfied that the investments that were made were a sham.

However, while I am not satisfied that the arrangements were sham transactions entered into for the purpose of Ly and Lam drawing cash out of their superannuation accumulations, I am satisfied that the arrangement allowed Mr Ly to access capital to pursue his current business ambitions in a way that would have been impossible if the funds had remained in APRA regulated superannuation funds. The falling out between Mr Ly and Mr Simeone which happened after the investments were entered into, related to the number of units in the 13 Diagonal Road trust which Mr Ly was entitled to because of contributions he made to resolving termite issues at the property when he was fitting out his café.[18]
[18] T3.33 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 864-5, 872.
I am satisfied that when Mr Ly and Ms Lam set up an SMSF it was because they had received financial product advice from Mr Simeone.
Some of that advice is recorded in an email dated 21 October 2016. It included the following statements:[19]
We will recommend that you and Muoi contribute as much as possible (to your resuscitated SMSF).
This will first achieve a reduction in the tax liability of both you and Muoi.
Also the accumulation can be invested as you like but we will favour property investments.
As explained we have the Ivy Way residential project which you can invest in.
[19] T3.34 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128).
The document is signed by Antonio Simeone.
I am satisfied that when investments were made by the trustees of the SMSF in AIMS and 13 Diagonal Road it was because they had received financial product advice from Mr Simeone. Mr Simeone admits that he regards SMSFs as useful vehicles. He admits that he prefers property as an investment. A number of clients with whom he had direct dealings moved their superannuation to SMSFs, then invested funds into AIMS and then invested in unit trusts which held underlying property assets. It cannot be the case that the trustees of the SMSFs all thought to do this independently of advice from Mr Simeone. I am satisfied that he did have conversations with Mr Ly which were intended to influence him to make those investments in that way. I cannot be certain of the particular dates, but I am satisfied that advice was given.
Mr Ly’s business did not go well. In the second half of 2016 its trading performance was poor and in the years which followed Mr Ly regularly sought to pay less and less rent.
By 2020 a complaint had been made by Mr Ly and Ms Lam to the Australian Financial Complaints Authority (AFCA).
In correspondence with AFCA Mr Simeone sought advice on ‘what specific investment advice did the licensee (Simeone Pty Ltd) provide to the SMSF on how to invest the accumulation?’ implicitly denying that Simeone Pty Ltd had ever given investment advice to the trustees. He conceded that Simeone Pty Ltd ‘did however repeat incidental & general advice to the trustees Binh & Muoi that an SMSF could invest in property. It was incidental and general advice and not specific advice hence no Statement of Advice. Our asset administration Administrative Incentivised Management Systems Pty Ltd assisted in the administration of the SMSF (in-source).’[20] This account significantly understates Mr Simeone’s personal involvement in recommending investments to Mr Ly and Ms Lam.
[20] T3.37 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 971.
Mr Simeone noted in his response to AFCA the difficulties a client might have in distinguishing between which entity in the Simeone Group is offering which service at any particular time. He stated:
‘We are mindful & sympathise that they [the client] may not be able to distinguish however we can! As we keep meticulous records.’[21]
[21] T3.37 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 972.
In response to the proposition that ‘there is proof within emails supplied that Tony Simeone found the property in question and advised Binh to Purchase shares in the Property trust set up by him with his SMSF for the purchase of the property’, Mr Simeone responded:
‘Yes in an effort to assist in Binh & Muoi wealth creation we pointed Binh & Muoi to a property nearby which they could acquire & suggested a retail complement to their existing wholesale business…I then suggested the coming together of a private investor group comprising Chris Donaldson, Carmine Polino, myself & Binh to acquire the property via a Unit Trust structure…I advise that the acquisition of the property in question was a private investment initiative by the unit holders in the unit trust once the structure had been established.’[22]
[22] T3.37 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 972.
The conversations he had with Mr Ly and Ms Lam could reasonably be regarded as intended to influence them to take out such investments – which they subsequently did.
Mr Simeone was not qualified to give that advice. He believed at the time that Simeone Pty Ltd was not licensed to give such advice. In breach of the regulatory requirements he gave the advice. He had a clear conflict of interest in giving that advice as he was the promoter of the property trust as well as providing financial product advice.
When Mr Ly complained to AFCA, Mr Simeone was of the view that ‘this is essentially a private dispute – Binh & Muoi are using AFCA resources not as they were intended’.[23] He never accepted that he was giving financial product advice which he was accountable to the regulator for. This is a theme that would emerge in relation to other clients.
[23] T3.37 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 973.
Aaron Lieu and Cynthia Yeo
Mr Simeone was recommended to Mr Lieu by one of Mr Lieu’s clients in early 2016.
He spoke to Mr Simeone on the phone first and then had a face to face meeting with him. His main reason for seeking financial advice was because he was looking at taking over an aquarium business.
Mr Simeone told Mr Lieu that it was not worth buying the business as it would not be profitable and that he was just buying himself a job. Mr Lieu understood this, but wanted to go ahead with the transaction. Mr Simeone was the only person he dealt with in the Simeone Group and he met up with him once or twice a month.
On 7 April 2016 Mr Aaron Lieu issued a “Letter of Appointment” that appointed Simeone Pty Ltd to act on the client’s behalf ‘as financial advisers brokers & managers to Hao Lieu and En Qi Yeo.’[24]
[24] T3.43 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 1045.
Mr Lieu knew that to purchase the business he needed a business loan for extra capital and first up applied for a loan with the banks.[25] However, commercial banks wanted a business plan to be prepared before they would consider the loan. In order to avoid the expense Mr Lieu saw Mr Simeone. Mr Simeone suggested Mr Lieu use the equity in his house to buy the business or instead obtain the funds from his superannuation.
[25] T3.50 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 1075.
As with other clients Mr Simeone discussed self-managed super funds with Mr Lieu.
On 4 May 2016 the Lieu/Yeo SMSF was established.
According to Mr Lieu in conversations recorded by ASIC,[26] Mr Simeone talked to Mr Lieu about setting up an SMSF so that he could access funds via his superannuation or borrow from his superannuation.
[26] T3.50 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128.
Mr Lieu said that he understood that Mr Simeone would invest his superannuation into AIMS. He did not get a clear explanation of AIMS but trusted Mr Simeone. Mr Simeone conceded in his interview with ASIC that he ‘would have discussed the AIMS arrangement with them’.[27]
[27] Exhibit R17 p 247.
On 4 April 2017 the Lieu/Yeoh SMSF invested $70,000 in AIMS ‘following AS advice’[28]. 70,000 Units in the AIMS trust were issued to Lieu Yeo Family Superannuation Fund.
[28] T3.50 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 1075.
Mr Lieu then borrowed $24,196.97 from AIMS. It would seem that the money borrowed was charged interest at 7% but no repayments were made. Meanwhile the money invested in AIMS earned 7% but only a small number of interest payments were made to the SMSF. As Mr Lieu had little visibility on any of these transactions and only a limited understanding of what was occurring, I have only reached affirmative conclusions about the movement of money where the transactions are supported by ledger entries in documents produced by Mr Simeone.
Despite some vagueness in aspects of Mr Lieu’s recollection, the delegate inferred that he and his wife had borrowed $59,196.97. This amount seems to have been determined by combining Mr Lieu’s recollection that he was given $35,000 and the total recorded borrowings in the ledger of $24,196.97. I am not satisfied that Mr Lieu’s recollection about the $35,000 is accurate. It seems just as likely that in giving that number Mr Lieu was thinking of the $24,196.97 that he borrowed.
The delegate also concluded that because $59,196.97 was an amount similar to the $70,000 originally placed into AIMS that there was never an intention that the money advanced to Mr Lieu be repaid.
I am not satisfied that the AIMS investment and the loan were mere book entries designed for the purpose of liberating funds invested in superannuation. Mr Simeone states correctly that the AIMS trust register shows 70,000 units held by the Lieu/Yeoh SMSF. Accordingly, the investment made by the SMSF may still have value.
I am however, satisfied that the practical effect of the arrangement put in place for Mr Lieu by Mr Simeone, was that funds which were earmarked for investment until retirement were made available for the purchase of a business of doubtful profitability to enable Mr Lieu to pursue a business of interest to him. This was an inappropriate superannuation investment given that such investments are intended to generate returns so that Mr Lieu and his wife would have funds to live on in retirement.
In relation to this series of transactions, I am satisfied that Mr Simeone gave financial product advice. When examined by ASIC Mr Simeone was asked if he recommended that the client’s SMSF invest in AIMS. Mr Simeone stated, ‘if I felt that they needed help and we had recommended that they consider establishing their own self-managed super fund, and that they consider that they wanted assistance with that, with managing the asset, then I, we would have discussed the AIMS arrangement with them.’[29] Despite the mixed use of ‘I’ and ‘we’, I am satisfied that Mr Simeone gave advice to Mr Lieu about investing in AIMS. Mr Lieu says he did not take advice from anyone else in the Simeone Group and there is no evidence suggesting that he did.
[29] Exhibit R17 p 247.
I am also satisfied that the only reason an SMSF trustee would allocate funds to AIMS is if its trustees were guided there by Mr Simeone. AIMS is an obscure, private investment with little transparency on how its returns are generated or even what the returns are likely to be. I am satisfied that Mr Simeone did engage in discussions concerning AIMS with Mr Lieu and did intend to influence him to invest in AIMS - which he did.
As noted above, the delegate also inferred that the loans were given by AIMS on the understanding that the clients were not obliged to repay the loaned amount. Mr Simeone denied that was the case. There is minimal evidence to support the inference. In this case the client understood that by investing in AIMS he could get a loan to purchase the business he was interested in buying, but how the loan was to be repaid and how returns were to be earned on the investment in AIMS does not appear to have ever been fully understood by the client.
I am not satisfied that loan forgiveness was part of the agreements that the client had with AIMS or Mr Simeone. I am however satisfied that Mr Simeone promoted to Mr Lieu a strategy that would enable him to access his superannuation to fund the purchase of a hobby business. By advising Mr Lieu to undertake the transaction he did, Mr Simeone led him to believe that superannuation could be used to ‘purchase a job’ rather than be kept in reserve to fund retirement. Funds were moved from SuperSA, Australian Super and SuperTrace. The movement of the funds to an SMSF and subsequent use for the purchase of a business involved putting the trustees of the SMSF in a breach of the sole purpose rule[30]. Mr Simeone gave advice as to the means by which the purchase of the business could be effected. Implicit in that advice is a representation that the series of transactions is lawful.
[30] The ‘sole purpose’ requirement in relation to superannuation is found in section 62 of the Superannuation Industry (Supervision) Act 1993 (SIS Act). In broad terms it requires that each trustee of a regulated super fund must ensure that the fund is maintained solely for the purpose of providing benefits to members on or after retirement
Mr Simeone also gave personal financial product advice. He did so in circumstances where he had a conflict of interest. He did so believing there was no AFS licence in place which authorised him to provide such advice. He failed to check whether the transactions he was recommending were lawful.
Christine Love
On 11 August 2017, Ms Love, a client of Simeone Pty Ltd, lodged a dispute with the Financial Ombudsman Service (FOS). It is a requirement that an AFSL licensee is a member of an approved dispute resolution service of which the FOS is one. [31]
[31] This is requirement under s 912A(1)(g)(i) of the Corporations Act.
Ms Love’s complaint was that as a client of Simeone Pty Ltd she got inappropriate advice which included:
(a)to set up an SMSF,
(b)invest the proceeds of the sale of an investment property in the SMSF rather than paying off a loan,
(c)borrow against a business which was about to wind up,
(d)invest $50K in the Ivy Way unit trust (a unit trust in which Mr Simeone was involved).
Further Ms Love complained that Simeone Pty Ltd incorrectly excluded ‘tenant damage’ from a landlord insurance application.
When the FOS raised these issues with Mr Simeone he responded that Simeone Pty Ltd did not provide financial advice.[32]
[32] Exhibit R51.
In response Ms Love advised the FOS of the following. At the time she first met with Mr Simeone, Ms Love was nearing retirement. She had a number of investment properties and a business. She met Mr Simeone in his office. He advised her to set up an SMSF. He took over brokerage, managing the SMSF, financial advice and accounting and bookkeeping. She does not recall receiving a statement of advice. All investments were executed in Mr Simeone’s office. Mr Simeone invested her funds in AIMS before investing in the Ivy Way unit trust. Mr Simeone advised Ms Love to refinance her loans with a low-doc loan in the name of her business. Ms Love complained to the FOS that the advice was inappropriate for her circumstances.[33]
[33] Exhibit R51.
When queried about these complaints by the FOS, Mr Simeone denied giving any advice to Ms Love to invest in the Ivy Way unit trust. He said Ms Love was introduced to Ivy Way by another unit holder. Mr Simeone confirmed he helped set up the SMSF and provided advice but disagreed that Ms Love was disputing the set-up of the SMSF. Mr Simeone advised that Ms Love divested her units in the Ivy Way unit trust by her own choice and some money was withheld by the trustees. Mr Simeone said that Ms Love’s complaint had nothing to do with any advice given by the licence holder but related to the money withheld by the trustees.
In his evidence to the Tribunal Mr Simeone said he did not give Ms Love advice to invest in the Ivy Way trust – he said Ms Love was advised about the trust by Renato Lovisa and another unit holder.
That may be true in relation to the investment in the Ivy Way. However, that does not mean that Mr Simeone did not give financial product advice to Ms Love. By encouraging Ms Love to set up an SMSF as an investment vehicle I am satisfied that he did provide financial product advice to her. I am satisfied that the information which Ms Love gave to the FOS about the advice she received directly from Mr Simeone about setting up an SMSF is accurate, primarily because the investments which Ms Love made were exactly the kinds of investments which Mr Simeone recommended to others. These were SMSFs combined with property investments through a unit trust. The structure of Ms Love’s investments is very similar to the investments Mr Simeone recommended to others and which he says is his preferred investment approach. I don’t need to make any finding about which person recommended the specific investment in the Ivy Way unit trust to make a finding that Mr Simeone gave Ms Love financial product advice.
As the complaint to the FOS progressed, Mr Simeone’s primary defence against the complaint was his assertion that the dispute involved a private matter concerning funds withheld on Ms Love’s exit from the Ivy Way unit trust which had nothing to do with any financial advice that was given and which should not and could not be the subject of a complaint to the FOS.
When queried by the FOS, Ms Love identified the following as the issues of concern:
(a)Mr Simeone set up an SMSF which was for his own benefit;
(b)He gave bad financial advice which resulted in a loss of $10,500 in interest;
(c)She was advised to put all her money in the SMSF;
(d)She received a $4000 tax bill from the ATO;
(e)When she complained Mr Simeone abused her verbally and told staff not to speak to her;
(f)The applicant withheld $3000 when she exited the unit trust;
(g)She has requested superannuation documents but he has not provided them.[34]
[34] Exhibit R51, p 5.
Mr Simeone however remained convinced that the dispute was about Ms Love failing to get the full redemption value when cashing out of Ivy Way (ie $3000 withheld when Ms Love exited the trust mentioned in paragraph (f) above). In his discussions with the FOS, he took the view that if he made a small offer to resolve the matter and Ms Love accepted it, that would prove that the dispute was not about bad advice but ‘just about divesting from Ivy Way’. Consequently, Mr Simeone offered $3,500 to resolve the dispute and this offer was communicated by the FOS to Ms Love.
At the time Ms Love ‘expressed disappointment with the offer – felt that AS should not be able to “get away with” his conduct – but was willing to accept it to finalise and move on.’[35]
[35] Exhibit R51, p 18.
Mr Simeone then reduced the amount offered to $3000 which Ms Love accepted if paid immediately. Ultimately the amount was never paid and Mr Simeone now says he will never pay it.
Mr Simeone made the following submission to the delegate:
‘Simeone Pty Ltd became a victim by association when Christine Love decided to lodge a complaint in 2017. And this being the first but not the only instance of my imploringly appealing for a clear understanding of our integrated model of practice. I believe I provided FOS/AFCA sufficient information to demonstrate that Christine Love was using FOS/AFCA to mitigate a personal loss, she willingly incurred by divesting herself of certain units in a unit trust. Those units were not under advice, as again we are not licenced to provide investment advice. I had not advised her to make that investment. I was a fellow unit holder in Ivy Way and out of compassion agreed to buy her unit at her original investment price minus an allowance for her proportion of the unpaid liabilities of the Ivy Way Unit Trust. And it has been like this ever since, Simeone Pty Ltd as an AFS licensee trapped by association with the other entities in the Simeone Group, which although related, are not providers of financial services under the Simeone Pty Ltd AFSL, but providers of non-AFSL services like tax, accounting, bookkeeping, loan arrangements and other services that are regulated under other government institutions and authorities.’[36]
[36] T1.3 of T-Documents in Simeone and ASIC (2022/1678), p 66.

Mr Simeone has never paid any compensation to Ms Love.
The response of Mr Simeone to the FOS complaint is typical of Mr Simeone’s reaction when complaints are made that he is giving advice and giving it as an agent of Simeone Pty Ltd – he denies that he ever gave financial advice and he insists that clients have confused the legitimate services which are provided by various entities within the Simeone Group with advice being provided by Simeone Pty Ltd under its AFS License.
While presenting his position in this way assists in obscuring what regulatory breaches occurred and the entity responsible for them, when the clutter created by Mr Simeone’s obfuscation is removed, a clear pattern emerges. Clients meet with Mr Simeone. He makes statements which do influence them (and are intended to influence them) to:
(a)set up SMSFs,
(b)shift funds from regulated super funds into the SMSF that has been set up,
(c)invest those funds in the AIMS trust and/or
(d)use the funds liberated for various purposes including investments in unit trusts with which Mr Simeone is associated.
The actions taken by Mr Simeone’s clients in response to the discussions he has had with them is not mere happenstance. Mr Simeone intends to influence them to adopt certain product strategies. They reflect his investing preferences. There is nothing malign about it. He hopes to help them improve their financial position. However, he gives this financial product advice without proper training or qualifications and without respect for regulatory requirements. Mr Simeone provides financial product advice without providing statements of advice. He provides the advice notwithstanding that it is his understanding that he has no authority to provide financial advice under the AFSL which Simeone Pty Ltd holds – and yet he does it anyway. The investments are then facilitated by other entities within the Simeone Group. Almost all the critical conversations however are had between Mr Simeone and the client.
CONSIDERATION
Does Mr Simeone’s conduct meet the statutory thresholds to make banning orders?
Antonio Simeone as an Individual
As noted before, when a person gives financial product advice they are providing a financial service.
Mr Simeone’s position is that he never believed he was qualified to give investment advice outside of the area of insurance broking and he never believed that Simeone Pty Ltd’s licence authorised him to give financial product advice about superannuation generally or investment products like property trusts. In his mind he never gave financial product advice. The following exchange is emblematic of his position on the issue:
SENIOR MEMBER: What I’ve understood you to be saying is that you don’t give financial investment advice?
MR SIMEONE: Particularly – particularly investment advice per se regarding where to put their money.
SENIOR MEMBER: Yes. And you don’t regard yourself as a – being licensed to do that?
MR SIMEONE: Because I am not licensed to do it and I’m not adequately trained. And I know enough about regulatory obligations that I would not do that without realising that I would be immediately and directly contravening my licensed conditions because I am not qualified.[37]
[37] Transcript p 86
It would appear that in Mr Simeone’s mind when he identified the investment structures which his clients ended up in he was just chatting with people about strategies which had worked for him.[38]
[38] Transcript p 86-7, 92, 121, 135, 193, 240, 294.
Given the documented experiences of Mr Simeone’s clients such a claim strains credulity, but for the purposes of considering the banning order I am prepared to accept that this was Mr Simeone’s subjective belief about the scope of Simeone Pty Ltd’s AFS Licence and accurately reflects what he thought he was doing when he encouraged clients to shift funds from APRA regulated superannuation funds into SMSFs and unit trusts controlled by him.
What inevitably follows is he was giving financial product advice which he did not have expertise in and had no authority to include as part of the service offered by Simeone Pty Ltd or the Simeone Group more generally.
So much was in effect conceded by Mr Simeone at the hearing before the Tribunal.[39]
[39] Transcript p 294.
Consequently the following thresholds for the triggering of the making of a banning order are made out:
(a)Section 920A(1)(da) – ASIC has reason to believe that Mr Simeone is not adequately trained, or is not competent, to:
(i)Provide one or more financial services – in particular financial product advice in the area of SMSFs and property trusts;
(b)Section 920A(1)(d) – ASIC has reason to believe that Mr Simeone is not a fit and proper person to provide financial product advice. In this regard I note that the concept of a person being ‘fit’ involves three things – honesty, knowledge and ability – honesty to execute the responsibility truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability so he can execute his responsibilities diligently.[40] The facts support the conclusion that Mr Simeone does not have sufficient knowledge to even know when he is giving financial product advice. This renders him unfit to give such advice. Further, he is not capable of advising on financial products except in a partial way which favours involving his clients in financial products in which he has an interest. He lacks the knowledge to advise clients on the range of financial products which are available and the benefits of each;[41]
(c)Section 920A(1)(f) – ASIC has reason to believe that Mr Simeone is likely to contravene a financial services law. In light of the finding that Mr Simeone gave financial product advice which he believed was not covered by the AFS Licence under which Simeone Pty Ltd operated, I am satisfied that Mr Simeone is likely to contravene a financial services law if he were not subject to a banning order. Prior to being banned, he failed to understand that he was in fact providing financial product advice on multiple occasions and failed to comply with the regulatory requirements which attach to the giving of that advice. He preferred to be wilfully blind about the proper categorisation of the advice he was providing and instead opted to quibble with regulators and complaints bodies about the scope of their jurisdiction rather than consider seriously the nature of the advice that he was giving. This dismissive attitude is likely to lead to further contraventions of financial services law – in particular the laws which prevent the giving of financial product advice without a licence;
[40] Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156 (Dixon CJ, McTiernan & Webb JJ)
[41] I have taken into account the matters in section 913BB. The only matter relevant is paragraph (k)
The banning order
I am satisfied that banning orders should be made in relation to Mr Simeone. He should be prohibited from providing any financial services and performing any function involved in the carrying on of a financial services business.
Mr Simeone showed himself to be a person prepared to advise and encourage clients to take retirement savings which were kept in secure APRA approved funds and place them into a range of investments which were, in some cases, very high risk (such as the purchase of businesses dependent upon the competence and hard work of the client) or into trusts which were poorly managed at least in the sense that no proper accounts were prepared and proper information about the nature of the investments and the character of the returns was not readily available. Mr Simeone also encouraged clients to put funds into products in which he had an interest.
This is not the conduct of a financial adviser who is capable of discerning either the requirements of the law or the best interests of his clients. Mr Simeone should have known that by recommending (for example) the movement of funds from an APRA regulated superannuation fund to an SMSF in order to invest in an aquarium business, he was facilitating an investment which breached the ‘sole purpose’ requirements[42] in relation superannuation investments and jeopardised the concessional tax treatment which superannuation earnings attract.
[42] The ‘sole purpose’ requirement in relation to superannuation is found in section 62 of the Superannuation Industry (Supervision) Act 1993 (SIS Act). In broad terms it requires that each trustee of a regulated super fund must ensure that the fund is maintained solely for the purpose of providing benefits to members on or after retirement.
Mr Simeone’s defence of this conduct, that he was not giving financial advice and that the trustees of the SMSF are responsible for choosing the investments they make, simply ignores the central role he played in arranging his client’s affairs. His inability to reflect on his own conduct and the influence that he had over investment decisions that were being made by these clients is alarming. Any reasonable and prudent person would have, at some point, realised that they were providing financial product advice whenever particular structural arrangements were being encouraged. To suggest that by the time clients reached a point where they had set up an SMSF and were about to move funds into AIMS with a particular destination for those funds already in mind, that AIMS was an entity providing the service does not reflect the reality. Funds were arriving in AIMS as a result of the financial product advice given by Mr Simeone which began with persuading clients to set up an SMSF. Part and parcel of that advice was that the ultimate investments would be managed through investment in AIMS. That was the advice. It was given by Mr Simeone. He remains unwilling to take responsibility for it.
In circumstances where I am satisfied:
(a)that Mr Simeone is not competent to provide investment product advice, and
(b)has been giving such advice for many years,
I am satisfied a banning order is appropriate. Mr Simeone has for a very long time operated a company under an AFS Licence. For him to wilfully or ignorantly operate outside what he understood was the scope of the licence, providing financial advice to clients and then deny that that is what he was doing is a very serious matter. His total inability to comprehend what the regulatory framework requires when he is encouraging clients to structure their affairs in particular ways demonstrates that he is unfit to provide financial product advice.
His persistence in resisting the banning order is an aggravating factor.
There is no sign that he has reflected upon the banning order ASIC imposed or the reasons why his conduct has come under scrutiny. He clearly feels he is a good person, who has been wrongly maligned by clients who should have been grateful for the assistance he provided. He has learnt nothing from the regulatory process.
I have considered the fact that the experience of the clients which came to ASIC’s attention may not reflect the experience of the thousands of other clients which Mr Simeone has helped over the years. I have also considered Mr Simeone’s other good qualities – his commitment to the Lions Club and the values it promotes, his work with the South Australian Multicultural and Ethnic Affairs Commission and his volunteer work.
These factors do little to mitigate the need for a ban. Throughout the regulatory process Mr Simeone has largely refused to accept that he was giving financial advice outside of the regime permitted by the Corporations Act and the Superannuation Industry (Supervision) Act. This indicates that the original banning order did nothing to cause him to reflect on his past conduct. He is an appropriate subject of a lengthy banning order.
I have decided that the decision to ban Mr Simeone should be affirmed.
SIMEONE PTY LTD
Simeone Pty Ltd was the holder of an AFS licence from 23 January 2004.[43]
[43] At the time the company was known as Simeone Insurance Brokers Pty Ltd; T3.2 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 130.
The power to cancel an AFS Licence is located in section 915C of the Corporations Act. If I am satisfied that a licensee has failed to comply with its obligations under section 912A, I have a discretion to cancel the licence.
Section 912A imposes two obligations on which I rely to cancel Simeone Pty Ltd’s AFS licence. First, the licensee must have in place adequate arrangements for the management of conflicts of interest that may arise wholly, or partially, in relation to activities undertaken by the licensee or a representative of the licensee in the provision of financial services as part of the financial services business of the licensee. Second, the licensee must ensure that representatives are adequately trained and are competent to provide the financial services covered by the license. I am satisfied that Simeone Pty Ltd failed to comply with both of these obligations.
The applicant’s’ position
The applicant contends that the scope of the licence was limited to providing financial product advice for certain classes of financial products and dealing in financial products in respect of certain classes of products.[44] On Mr Simeone’s evidence, he never believed the licence ever extended beyond authorising the dealing in and giving advice on insurance. To the extent that Simeone Pty Ltd was authorised by the licence to give advice in relation to superannuation it was only in respect of the insurance associated with superannuation. It is important to Mr Simeone that the licence be understood in this way because he freely admits that he was not competent to give financial product advice beyond insurance. There is a good chance that Mr Simeone is mistaken about that, but it is relevant that that was his subjective understanding.[45]
[44] License appears at T3.2 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 130.
[45] T3.2 of T-Documents in Simeone Pty Ltd and ASIC (2022/2128) p 130.
At the hearing before the Tribunal Mr Simeone argued that apart from the insurance advice given, which was given consistent with the terms of its AFS Licence, none of the advice that was given to the complaining clients by him or anyone else in the Simeone Group, was given by Simeone Pty Ltd under its licence. Accordingly, so the argument goes, Simeone Pty Ltd should not be held responsible for advice that other parts of the Simeone Group were giving.
Before addressing that issue, it is worth noting the following points in relation to the structure of Simeone Pty Ltd. The company that is now Simeone Pty Ltd ACN 008 102 921 was first registered on 4 June 1986. Since 4 June 1986 Mr Simeone has been a director of Simeone Pty Ltd. On 23 January 2004 ASIC issued an Australian Financial Services Licence to the company now known as Simeone Pty Ltd. The licence identifies Mr Simeone as a key person. A key person is a licensee’s responsible manager on whom the licensee is heavily dependent in order to be competent. Since 23 January 2004 Mr Simeone has been an authorised representative of Simeone Pty Ltd.
Accepting as a starting point that Simeone Pty Ltd’s AFS Licence was narrow in scope and only authorises advice in relation to insurance and insurance associated with superannuation, it was still incumbent upon Simeone Pty Ltd to ensure that representatives of the company were adequately trained and acting within their authority. Under s 917B of the Corporations Act, if a representative is a representative of only one financial services licensee (which is the case for Mr Simeone) the licensee is responsible for the conduct of the representative whether or not the representative’s conduct is within authority.
On any view of the facts, of the five clients who complained about the services provided by the Simeone Group, it is indisputable that two were clients of Simeone Pty Ltd. Ms Love and Mr Pedicini. They were insurance clients of Simeone Pty Ltd. Consequently, in relation to these two clients (at least), Simeone Pty Ltd is responsible for Mr Simeone’s conduct whether it was within his authority or not. In these circumstances, Simeone Pty Ltd had an obligation under the licence to ensure Mr Simeone was adequately trained. This includes (at a minimum) ensuring that he knows when he is giving financial product advice. As we have seen previously, Mr Simeone was unable to identify the point at which he was telling clients anecdotes about his own experience and the point at which he began to give them financial product advice. Clearly, he was not adequately trained. It was essential that the company ensure that all of its representatives knew the point at which they had to stop discussing financial products with clients to ensure that they did not operate outside the scope of the licence. Mr Simeone never received such training. As a consequence, he gave a number of insurance clients of Simeone Pty Ltd financial product advice which he was not qualified to give.
The company also had no arrangements in place for managing conflicts of interest. Mr Simeone’s view was that there was no risk of a conflict because the client was charged a flat fee regardless of what services they used within the Simeone Group.[46] Mr Simeone seemed to be completely unaware that a conflict of interest could emerge from him recommending a property investment which he was associated with as opposed to other property investments which might offer lower risk or higher returns in the long term to the trustees of an SMSF. The way in which Simeone Pty Ltd operated was loaded with potential conflicts of interest. Using an insurance broking business to attract clients and cross sell them other products including financial advice was the Simeone Group model. It was a business model that required very careful conflict management. Simeone Pty Ltd as the holder of an AFS licensee could not simply ignore the issue on the basis that there was a sub-set of clients who had fee agreements which limited the extent of the conflict when cross-selling services. This was not adequate management. The applicants accept that there was no specific arrangement in place for managing conflicts.[47]
[46] Transcript p 118-19.
[47] Transcript p 236-7.
Accordingly, I am satisfied that Simeone Pty Ltd did not comply with its obligations under section 912A in two respects. Therefore the precondition for cancelling or suspending the licence is satisfied. I am satisfied that Simeone Pty Ltd did not manage conflicts and did not ensure its representatives were appropriately trained.
I agree with ASIC that in the circumstances it is appropriate to cancel the licence. Simeone Pty Ltd has not acknowledged its non-compliance or adequately explained its failure to comply. Simeone Pty Ltd has not demonstrated any willingness to admit its shortcomings. Its willingness to remedy the problems is doubtful.[48] There has been no clear statement that the conduct which has led to the licence cancellation will not be repeated. Accordingly, the power should be exercised. Doing so will protect market participants from poor advice about the use of their retirement savings and the receipt of advice which involves conflicts of interest. Cancellation will deter like conduct and promote fairness and professionalism by those who provide financial services.
[48] When the applicants were legally represented submissions were made that they were willing to instruct a firm to develop a conflict of interest policy but prior to hearing that position was resiled from.
Mr Simeone as the directing mind of Simeone Pty Ltd has shown no ability to reflect on his conduct and the harm that it might have caused to his clients. This is not a case where defects have been remedied. Mr Simeone is not prepared to concede that there was anything wrong with the conduct of business by Simeone Pty Ltd. In such circumstances cancellation of the licence is the appropriate course. The following is a fair example of Mr Simeone’s own view of his conduct:
I am saying that when we look at the four clients individually you will note that I’ve actually practised my financial general practitioner role very well and not relied on my own expertise – always looked at the expertise of others to be able to deliver the solution that was first required.[49]
…
Foolishly though, I believed that, once they’d engaged me, that they would remain as patients of the Simeone Group. Instead, with these four patients that ASIC has located, they left the Simeone care and so I was not able; and that is a foolish assumption on my part that I – but this is what happens. People default when it comes to money, and I’m happy to concede that I should’ve been wiser or whatever. So that’s - - -
All right?---It’s not remorse, but it’s regret, I guess, that I could’ve – I could’ve made sure – you know.[50]
…
I don’t feel like a victim, but I’ve been punished perhaps too harshly and been cloaked in my various roles with the Simeone Group. I’ve been cloaked with financial services licencing laws, and not – without the words ‘superannuation’ in our licence – and I’ll present that later – I possibly wouldn’t have a problem, but then I would feel bad anyway because I need to rectify if I’ve – if I’ve misled or done something. So I’m truly remorseful that it – whatever I’ve done can be seen in – through the eyes of a financial services licence as inappropriate. But I think you’re, with great respect, at this tribunal, you’re using the licencing laws to overreach in areas that I’ve had to be very strong to defend those positions, where at no time did I intend to be noncompliant with the licence. And there are other means by which people can take remedial steps if the – if they think that I’ve done something inappropriate towards them as clients.[51]
…
Maybe it’s opportune to tell you now that I actually – ASIC has stated categorically that I did not offer remorse or remediation or a sense of regret. Well, I did, because I proposed ‘I’m happy to suffer the ban, but please do not take away the licence of Simeone Pty Ltd because there are people that count on that practice, the general insurance and life insurance practice, to continue as per the licence.’[52]
[49] Transcript, p 93-94.
[50] Transcript, p 149.
[51] Transcript, p 238.
[52] Transcript, p 325.

Mr Simeone believes that because he has ‘not contravened any law with regard to risk insurance broking for over 45 years’ he should be ‘allowed to practice in the area of General Insurance & Life Insurance and, if so preferred by ASIC, to abandon the integrated model of practice.’[53]
[53] T1.2 of T-Documents in Simeone and ASIC (2022/1678), p37.
I am not prepared to consider such a course. Mr Simeone used his reputation in insurance broking to obtain clients. He then proceeded to provide advice to them which he was not qualified to give and which he believed he was not licensed to give. He is not remorseful. He does not understand that what he did was wrong and he does not regret the errors of the past. As the directing mind of the company Simeone Pty Ltd this has consequences.
I am satisfied that the decision in respect of Simeone Pty Ltd should be affirmed.

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan.

.............................[sgd].....................................
Associate
Dated: 23 April 2024

Dates of hearing:
7-8 August 2023; 4-5 December 2023,

For the Applicant:

For the Respondent:

Self-Represented

Ms Suzanne MacKenzie, Bar Chambers Adelaide

Schedule A
Exhibit R1 – Tab 5.5 of the Appeal Book, titled ‘AAT Evidence Loan Repayment Boram Kinkead’
Exhibit R2 – Tab 5.4 of the Appeal Book, titled ‘AAT Evidence Loan Repayment Pedicini’
Exhibit R3 – Tab 3.16 of the T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Attachment entitled 492562_20171129_9936170.pdf dated 01-Dec-17’ being the Recommendation of FOS
Exhibit R4 – Tab 3.17 of the T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Email entitled RE:FOS Case 492562, Ms Christine Love and Simeone Pty Ltd from christine.d.love2012 to Siobhan Ryan dated 19-Nov-17’
Exhibit R5 – Tab 3.18 of the T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Attachment entitled 492562 – Determination.pdf’ being the Determination of FOS
Exhibit R6 – Tab 3.19 of the T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Attachment entitled 492562_20180612_10883993.pdf dated 12-Jun-18’ being the Acceptance of the Determination of FOS by Christine Love
Exhibit R7 – Tab 18 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Webcapture of Tax Practitioners Board Registration Details for Simeone Accounting & Tax Pty Ltd’
Exhibit R8 – Tab 19 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Webcapture of Tax Practitioners Board Registration Details for Simeone Accounting & Tax Pty Ltd – Details of Termination Part 1’
Exhibit R9 – Tab 20 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Webcapture of Tax Practitioners Board Registration Details for Simeone Accounting 7 Tax Pty Ltd – Details of Termination Part 2’
Exhibit R10 – Tab 21 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Letter from the Tax Practitioners Board to ASIC re Notice of decision under the Tax Agent Services Act 2009 (redacted)’
Exhibit R11 – Tab 22 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Letter from the Tax Practitioners Board to ASIC Outcome of the Tax Practitioners Board Investigation – Termination of registration and Decision (redacted)’
Exhibit R12 – Tab 24 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Letter from Leah Sciacca, Senior Executive Leader, ASIC to Mr Antonio Simeone re FAR Project’
Exhibit R13 – Tab 11.42 of the Appeal Book, titled ‘AFCA Determination 652756’
Exhibit R14 – Tab 11.43 of the Appeal Book, titled ‘AFCA Determination 833117’
Exhibit R15 – Tab 3.1 of the T-Docs in 2022/1678 (Simeone), titled ‘ASIC Extract entitled ASIC Extract – Financial Advisers and Authorised Representatives Register – Antonio Simeone 001232739 from Australian Securities & Investments Commission dated 27-Jul-21’
Exhibit R15A – Tab 3.2 of the T-Docs in 2022/1678 (Simeone), titled ‘Publication entitled Australian Financial Services Licence – Simeone Insurance Brokers Pty. Ltd. dated 23-Jan-04’
Exhibit R16 – Tab 3.5 of the T-Docs in 2022/1678 (Simeone), titled ‘Attachment entitled 2020.01.05-BARINGVGROUPSimeoneApproach.pdf dated 06-Jan-20’ further titled ‘THE SUMMARY OF OUR APPROACH TO ACCOUNTING & INTEGRATED SERVICES PROVISION’
Exhibit R17 – Tab 3.6 of the T-Docs in 2022/1678 (Simeone), titled ‘Transcript entitled SIMEONE, Antonio – s. 19 – Unsigned dated 09-Dec-20’
Exhibit R18 – Tab 3.37 of the T-Docs in 2022/1678 (Simeone), titled ‘Attachment entitled 2021.02.15 – SIMEONE GROUP Directions Response AIMS Unit Register 2017.pdf dated 16-Feb-21’
Exhibit R19 – Tab 3.24 of the T-Docs in 2022/1678 (Simeone), titled ‘Attachment entitled [00011]-[421438665]-]21-04-2017].pdf dated 26-May-20’ being the Bank Statement for the period of 28 January to 20 April 2017 for the AIMS Trust
Exhibit R20 – Tab 3.10 of the T-Docs in 2022/1678 (Simeone), titled ‘Attachment entitled [00008]-[421438665]-[21-10-2016].pdf dated 26-May-20’ being the Bank Statement for the period of 23 July 2016 to 18 October 2016 for the AIMS Trust
Exhibit R21 – Tab 3.14 of the T-Docs in 2022/1678 (Simeone), titled ‘Attachment entitled 2021.03.15 – AIMS GROUP Spreadsheet Loans Book with Financial Year Loan Balances for ASIC .pdf dated 15-Mar-21’
Exhibit R22 – Tab 3.7 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled SMSF FSMA (signed) – 10.09.2016.pdf dated 01-May-20’ further titled ‘Scenario for the establishment of the self-managed superannuation fund’
Exhibit R23 – Tab 3.8 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.09.05BORAMKINKEADGROUPSMSF Deed Signed.pdf dated 01-May-20’ further titled ‘SUMMARY FOR SELF-MANAGED SUPERANNUATION FUND DEED’
Exhibit R24 – Tab 3.9 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.08.29 – BORAM KINKEAD Financial Stress Recovery Plan 2.docx dated 14-Nov-16’
Exhibit R25 – Tab 3.11 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.08.16 – BORAM KINKEAD GROUP Letter of Appointment M & C.doc dated 16-Sep-16’
Exhibit R26 – Tab 3.12 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled Boram Kinkead – AIMS Contracts.pdf dated 01-May-20’ further titled ‘SUMMARY OF SUPERANNUATION INVESTMENT FOR Boram Kinkead Family Superannuation Fund’
Exhibit R27 – Tab 3.13 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled Boram Kinkead Family SMSF – 2017 financials.pdf dated 01-May-20’ further titled ‘Financial statements and reports for the year ended 30 June 2017’
Exhibit R28 – Tab 13 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Boram – Call Script for Simeone Pty Ltd (Antonio Simeone) clients (redacted)’
Exhibit R29 – Tab 11 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Email from Jeanette Kinkead to ASIC re alleging corruption by our financial counsellor (redacted)’
Exhibit R30 – Tab 3.17 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.07.14 – PEDICINI A & D Letter of Appointment.docx dated 14-Jul-16’
Exhibit R31 – Tab 17 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Pedicini – Call Script for Simeone Pty Ltd (Antonio Simeone) clients (redacted)’
Exhibit R32 – Tab 3.19 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled Phone Records.pdf dated 01-May-20’
Exhibit R33 – Tab 3.25 of the T-Docs in 2022/1678 (Simeone), titled ‘Attachment entitled 13 Diagonal RD Trust document.pdf dated 07-Apr-20’
Exhibit R34 – Tab 3.26 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled Minutes of meeting held but Bin not there.pdf dated 01-May-20’
Exhibit R35 – Tab 10 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Current & Historical Company Extract for 13 Diagonal Road Pty Ltd CAN 617 974 704’
Exhibit R36 – Tab 3.27 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2018.04.25-DIAGONAL ROAD Herron Todd White Valuation Report.pdf dated 01-May-20’
Exhibit R37 – Tab 3.29 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.04.07 – LIUEYEO loa.doc dated 19-Apr-16’ further titled ‘LETTER OF APPOINTMENT’
Exhibit R38 – Tab 3.30 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.04.07 – LIEUYEO GROUP Superannuation Snapshot.doc dated 07-Apr-16’
Exhibit R39 – Tab 3.34 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2017.02.03 – LIEUYEO GROUP Letter SMSF ATO.docx dated 13-Feb-17’
Exhibit R40 – Tab 3.35 of the T-Docs in 2022/1678 (Simeone), titled ‘Electronic File entitled 2016.06.05LIEUYEOGROUP SMSF Investment Strategy.pdf dated 03-Jun-16’
Exhibit R41 – Tab 3.36 of the T-Docs in 2022/1678 (Simeone), titled ‘Email entitled Telephone conversation summary [SEC=OFFICIAL:Sensitive] from Valerie Baring <”/o=exchangelabs/ou=exchange administrative group (fydibohf23spdlt)/cn=recipients/cn=usera5e93a65”> to [email protected] dated 02-Apr-20’
Exhibit R42 – Tab 9 of the Appeal Book, titled ‘Affidavit of Mr Antonio Simeone’
Exhibit R43 – Tab 7 of the Appeal Book, titled ‘Applicants’ Amended Statement of Facts, Issues and Contentions’
Exhibit R44 – Tab 11.29 of the Appeal Book, titled ‘ATO Taxpayer Alert TA 2010/5’
Exhibit R45 – Tab 6 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Current & Historical Company Extract for Simeone Accounting and Tax Pty Ltd CAN 128 048 395’
Exhibit R 46 – Tab 7 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Current & Historical Company Extract for Simeone Bookkeeping & Ledgers Pty Ltd CAN 604 426 977’
Exhibit R47 – Tab 8 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Current & Historical Company Extract for Administrative Incentivised Management Systems Pty Ltd CAN 603 650 139’
Exhibit R48 – Tab 9 of the Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘Current & Historical Company Extract for 299 Payneham Road Pty Ltd CAN 613 856 509’
Exhibit R49 – Tab 3.20 of the T-Docs in 2022/1678 (Simeone), titled ‘Email entitled Fwd: Simeone – Ly Lam Group Holistic Review from Andy Lisa <[email protected]> to [email protected] dated 06-Aug-19’
Exhibit R50 – Tab 3.3 of the T-Docs in 2022/1678 (Simeone), titled ‘Transcript entitled SIMEONE, Antonio – s. 19 – Unsigned dated 07-Dec-20’
Exhibit R51 – Tab 3.20 of T-Docs in 2022/2128 (Simeone Pty Ltd), titled ‘CASEY Case Action Report’
Exhibit R52 – Documents added to the Further Supplementary T-Docs in 2022/2128 (Simeone Pty Ltd) from T56 to T61
Exhibit R53 – Simeone Insurance Brokers Pty Ltd Financial Services Guide, Version 4
Exhibit A1 – Tab 5.3 of the Appeal Book, titled ‘SIMEONE PTY LTD Evidence Christine Love FOS 2’
Exhibit A2 – Tab 5.1 of the Appeal Book, titled ‘SIMEONE Practice Structure Process Diagrams’
Exhibit A3 – Bundle of documents provided by the applicant between 1 December 2023 and 4 December 2023 (catalogued in excel spreadsheet provided by the respondent on 5 December 2023)

[2024] AATA 819

23 April 2024

Key Legal Topics

Areas of Law

Administrative Law

Commercial Law

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

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Intention