Sovereign Capital Limited and Australian Securities and Investments Commission
[2008] AATA 901
•8 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 901
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200700061
GENERAL ADMINISTRATIVE DIVISION ) Re SOVEREIGN CAPITAL LIMITED Applicant
And
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal Honourable Dr B H McPherson CBE, Deputy President, and
Senior Member Bernard J McCabeDate8 October 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and decides in substitution that:
(a) the applicant’s Australian Financial Services Licence is suspended pursuant to s 915C of the Corporations Act 2001 for a period of 12 months from the date of this decision;
(b) ASIC may lift the suspension before the 12 month period has elapsed if the applicant is able to establish to ASIC’s reasonable satisfaction that the applicant has engaged a person with appropriate authority, experience and skill to supervise the applicant’s staff and manage its activities in accordance with the applicant’s obligations under s 912A of the Corporations Act 2001; and
(c) if the applicant fails to engage an appropriate person as contemplated in sub-par (b) (above) within 12 months, the applicant’s licence shall be cancelled.
......................[Sgd]........................
Deputy President
CATCHWORDS
CORPORATIONS – Financial Services and Markets – Australian Financial Services Licence – Cancellation – Whether applicant breached obligations of financial service licensee – Respondent claims applicant breached several obligations – Applicant denied investors opportunity to inspect register of members – Applicant’s unequal treatment of members – Applicant’s failure to take reasonable care in due diligence process – Applicant’s conflicting interests – Applicant’s disclosure on internet website advertising – Applicant’s disclosure on loan risk – Applicant’s conduct in certain loans – Whether discretion to cancel or suspend the licence – Decision set aside – Decision in substitution that licence suspended
Australian Securities and Investments Commission Act 2001 (Cth), ss 1, 12DA
Corporations Act 2001 (Cth), ss 167A(2), 168(a), 173(3), 252B, 601FC(1)(b), 601FC(1)(d), 601FC(2), 728A(1)(b), 760A, 911A, 912A(1), 914A, 915B, 915C, 915J, 1020E(2), 1021D(1), 1021E(1)
Property Law Act 1974 (Qld), s 85
Mutter v Eastern & Midlands Rwy Co (1888) 38 Ch D 92
Davies v Gas Light & Coke Co [1909] 1 Ch 707
James v Evening Standard Newspapers Co Ltd (1895) 21 VLR 399
In re Peveril Gold Mines Ltd [1898] 1 Ch 122
In re Greene [1949] Ch 333
Kippe v Australian Securities Commission (1998) 16 ACLC 190
Meehan v Jones (1982) 149 CLR 571
Gange v Sullivan (1966) 116 CLR 418
Derry v Peek (1889) 14 App Cas 337
Downsview Ltd v First City Corporation Ltd [1993] AC 295
Cuckmere Brick Co v Mutual Finance Ltd (1971) Ch 949
Commercial & General Acceptance Ltd v Nixon (1981) 152 CLR 491
Hypec Electronics Pty Ltd (in liq) v Registrar General (2005) 64 NSWLR 679
Story v National Companies and Securities Commission (1988) 13 NSWLR 661
REASONS FOR DECISION
8 October 2008 Honourable Dr B H McPherson CBE, Deputy President, and Senior Member Bernard J McCabe 1. The proceedings arise out of a decision made by the Australian Securities and Investments Commission (“ASIC”) to cancel the Australian Financial Services Licence (“the licence”) held by Sovereign Capital Limited (“SCL”). SCL needs a licence if it is to engage in the business of providing financial services. ASIC says SCL has contravened a number of provisions of the Corporations Act 2001 (“the Act”) and the Australian Securities and Investments Commission Act 2001 (“the ASIC Act”). It says the contraventions justify exercising the discretion in s 915C of the Act to cancel the licence. SCL, the applicant in these proceedings, disagrees. It has asked the Tribunal to reconsider the decision to cancel the licence.
2. The decision under review must be set aside, even though we accept SCL has not met all of its obligations under s 912A of the Act. We have decided in substitution that the licence should be suspended pursuant to s 915C to provide SCL with an opportunity to introduce changes in its management arrangements and personnel that will enable it to comply with its statutory obligations. We explain our reasons below.
Background to the dispute
3. SCL is the responsible entity for the Sovereign Prudential Fund (“the fund”). The fund was established in 1999. It is a contributory mortgage scheme, which is a species of managed investment scheme. The fund makes money for its contributors (the investors or members who put money into the fund) by lending money on the security of first and second mortgages over real property. SCL promotes and manages the fund. Pursuant to orders of the Supreme Court (Sovereign Capital Limited v Sovereign Capital Prudential Fund, 20 December 2006, Supreme Court of Queensland, Civil Jurisdiction, 10783 of 2006), SCL is winding up the fund under the supervision of an independent accountant. (SCL is also the responsible entity for another fund which is in the process of being wound up. The other fund is not relevant to the present discussion.)
4. SCL and its predecessors caused the fund to advance around $193 million in loans to various borrowers since 1999. Six loans remain outstanding. All six of the loans were in default at the time of the hearing. The fund has not made further advances or accepted contributions from new investors since December 2006.
5. The three directors of SCL are Messrs Mark Parker, Bruce Simmonds and Peter Benson. Messrs Parker and Simmonds are solicitors and partners in the Gold Coast law firm Parker Simmonds. Mr Benson is not legally qualified, although he has studied some law subjects. He is a former professional footballer. He testified that he has developed a thorough understanding of property law and the lending business in New South Wales and Queensland.
6. Mr Benson said in the course of his oral evidence that he is responsible for the day-to-day management of SCL’s business. He said he is able to call on external lawyers for advice when he thinks it is required. He is also presumably able to call on the advice of his fellow directors. It was unclear whether Messrs Parker and Simmonds were actively involved in the management of the business, or if they were experienced in dealing with the sort of questions that might arise in the course of managing the fund. Mr Benson is assisted by staff, although we are not aware that any of SCL’s employees (as distinct from its directors) are legally qualified.
7. SCL says its operations are generally well-managed. Mr Marshall SC, counsel for the applicant, referred in his outline of submissions to a report dated 21 October 2005 from McGrath Nicol & Partners, an independent firm of accountants: Exhibit 1. That report concluded that the fund’s documents that had been inspected by the accountants “were well kept and accurate” and added that “management have been open and transparent in our dealings with them”: Exhibit 1 at folio 5. The report found “Valuation and security procedures appear robust” (at folio 6) and observed that the departures from the fund’s compliance processes identified in a review of a sample of the loans were not “material”: at 9. The report also concluded “Processes in place for managing defaulting loans appear to be adequate”: at folio 7. Mr Benson noted (Exhibit 4 at page 4 [1.37] of his statement) that one of the authors of the report had told him that SCL’s management was “close to best practice”.
8. Mr Marshall pointed out that the McGrath Nicol report had been produced before White J in the winding up proceedings. Her Honour also had access to ASIC’s Statement of Concerns dated 15 September 2006. The transcript of her Honour’s remarks suggests she was not unduly troubled by what she had read, although we note:
·the Court did not have the same opportunity that we have had to conduct a detailed review of the evidence; and
·the Court was in any event addressing a different question from the one before us.
A brief history of the dealings between Sovereign Capital and ASIC
9. SCL obtained its licence under Pt 7.6 of the Act on 30 January 2004. ASIC subsequently became aware of matters that prompted it to provide SCL with a notice of hearing incorporating a Statement of Concerns dated 15 September 2006. The notice is found in Exhibit 1 at folio 58ff. The statement informed SCL that the Delegate was considering whether to cancel the licence in light of ASIC’s concerns and invited SCL to provide evidence and make submissions in response.
10. A hearing was held in ASIC’s Brisbane office on 28 and 30 November 2006. A transcript of the hearing is found in Exhibit 1 at folio 783ff. Following that hearing, on 21 December 2006, the Delegate decided to cancel the licence pursuant to s 915C of the Act. The decision was expressed to take effect from the date of service, which was 5 January 2007. The notice of cancellation is set out at Exhibit 1 at folio 5ff.
11. We will begin by considering the relevant legal rules. We will then turn to consider the facts which ASIC says justify the decision to cancel the licence.
12. We note Mr Marshall’s submissions raise a number of concerns about ASIC’s decision-making process. There was a reference to apprehended bias on the part of the original decision-maker. There was also a reference to some matters that it was said amounted to procedural errors. We do not propose to deal with those matters in the course of these reasons. They may be of interest to a court in the course of a judicial review of the decision-making process, but this Tribunal undertakes a different task. We are reconsidering the decision on its merits.
The legal framework
13. Part 7.6 of the Act deals with the licensing of providers of financial services. Section 911A of the Act provides that a person carrying on a financial services business must obtain a licence. The general obligations of licensees are set out in s 912A(1). The list is wide-ranging, but it includes the obligation to:
(a)do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly; and
(aa)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 or the representative; and
(b) comply with the conditions on the licence; and
(c) comply with the financial services laws; …
14. The reference to “financial services laws” in s 912A(1)(c) is a reference to other provisions of the Act and of the ASIC Act which regulate the conduct of providers of financial services businesses. The provisions referred to in these proceedings were:
·Section 728(1)(b) of the Act, which prohibits the omission of certain required information from a disclosure document;
·Sections 601FC(1)(b) and 601FC(1)(d) of the Act. Section 601FC sets out the duties of a responsible entity of a registered scheme. Those duties include a duty take reasonable care (sub-s (1)(b)) and a duty to treat members holding interests of the same class equally, and to treat members holding different interests fairly (sub-s(1)(d)).
·Section 12DA of the ASIC Act, which prohibits misleading or deceptive conduct in relation to financial services.
·Sections 1021D(1) and 1021E(1) of the Act. Those provisions create an offence of preparing and distributing defective disclosure statements in the circumstances described in the provisions.
15. A licence may be cancelled or suspended in the circumstances set out in ss 915B and 915C. ASIC made its decision under s 915C which permits suspension or cancellation following a hearing. In this case, ASIC relies on the grounds identified in s 915C(1)(a) – namely that SCL did not comply with its obligations under s 912A(1). We will discuss the law that regulates the exercise of the discretion to cancel or suspend the licence later in these reasons.
Areas of concern: the evidence
16. It will become apparent from our discussion of the facts that we are satisfied Mr Benson’s training and inexperience lie at the heart of SCL’s problems. It is evident that his knowledge of the law is not equal to the demands made upon it by the funds management business being conducted by SCL. That business is carried on not only in Queensland, where the principal office is located, but in New South Wales and Victoria, where loans are made and securities are taken. There are differences, some more or less subtle but significant, in the laws and conveyancing practices under which invested funds operate and are managed in these places. Examples include the way in which contracts for the sale of land are concluded in New South Wales, but not in Queensland or Victoria, and in stamp duty and revenue laws in each State, as well as local statutory requirements applicable to trustees and trust accounts. In addition, rules affecting real property and mortgages differ from State to State in certain respects, such as the extent to which title to real property is held under the Torrens system or under the general law.
17. Mr Benson does not have the training or experience to navigate SCL through these risks. He says he is able to call upon the advice of Messrs Parker and Simmonds and other professional advisers when he faces difficulties. That is no answer where Mr Benson may not recognise difficulties when he sees them.
18. The most obvious examples of Mr Benson’s shortcomings as a manager are to be found in SCL’s response to requests to inspect the register of members, and to its decision to allow a troublesome investor to make an early withdrawal from the scheme.
19. Denying investors the opportunity to inspect the register of members. Section 167A(2) requires the responsible entity of a registered scheme, like SCL, to perform the obligations under Ch 2C. Those obligations include maintaining a register of members: s 168(a); and allowing anyone to inspect the register or get copies of it within seven days: s 173(3). Provisions in the form of Ch 2C of the Act have consistently been held not to be compromised by the motive of the persons seeking to inspect or copy registers many of whom have been competitors of the company in question: see Mutter v Eastern & Midlands Rwy Co (1888) 38 Ch D 92, at 105; and Davies v Gas Light & Coke Co [1909] 1 Ch 707, at 711.
20. Curiously, cl 12.4 of the fund’s Constitution affects to confer on the manager of the fund authority to disallow inspection of the register except in certain specified cases. It also requires a prior written undertaking that the inspection will not be used except for certain limited purposes. These and other provisions of cl 12 would, if given effect, seriously derogate from, qualify or limit the statutory rights conferred by Ch 2C of the Act. None of those qualifications or limitations is recognised by Ch 2C; and it is clear that, to the extent that they are inconsistent with the Act (as they plainly are), those provisions of cl 12 of the Constitution are invalid and of no effect: see James v Evening Standard Newspapers Co Ltd (1895) 21 VLR 399; In re Peveril Gold Mines Ltd [1898] 1 Ch 122; In re Greene [1949] Ch 333, at 338.
21. In 2004 and 2005 SCL received requests from various members seeking inspection or copies of the register of members of the fund. Tidswell Financial Services Limited by its solicitors Thomson Playford of Adelaide wrote on 8 July 2004 asking for a copy of the register to be provided within seven days as provided in s 173(3). After failing to receive a response, the solicitors repeated the request on 30 July 2004 and again on 30 August 2004. Some form of reply must then have been received from SCL because Tidswell’s solicitors’ letter of 30 August referred to a claim by SCL based on the Privacy Act 1988. Such a claim was completely spurious and untenable, and it was effectively demolished by those solicitors in their letter of 30 August. It was followed by an inquiry from SCL asking what Tidswell intended to use the register for, and also that SCL could not release it until after the next directors’ meeting on 15 September. On 6 September 2004 SCL in a letter dated 14 October 2004 quoted an extract from the SCL Constitution purporting (despite the terms of the Corporations Act) to require a written undertaking about the use intended to be made of the register. Eventually, but only on 18 November 2004, Tidswell received a copy of the register by fax from SCL.
22. Tidswell was not the only one to whom SCL denied or delayed providing a copy of the register. Mr Edward Elsom requested a copy on 23 June 2005 giving the written undertaking called for under the Constitution. SCL wrote to ASIC on 4 October 2005 stating that a copy of the register, or “a part of the register” (emphasis added), had been supplied to Mr Elsom either on 19 or on 30 September “[h]owever, we have no objections to providing the detailed information requested by Mr Elsom …”.
23. Then there is the case of Mr Peter Hannan and Mrs Margaret McQuade. Their solicitors Lawyers Central of Surrey Hills, NSW, wrote by fax to SCL on 14 March 2005 advising that their clients would be attending at the SCL Gold Coast office on the following day 15 March to inspect the SCL Register kept under Ch 2C. When they called on Mr Benson he advised it would take 7 to 10 days to provide them with a copy of the register. They were not given the opportunity of inspecting it in situ. Further letters dated 18 and 22 March from Lawyers Central failed to elucidate from SCL any reason why a copy of the register could not simply have been downloaded electronically. By 24 April 2006 Mrs McQuade was still complaining to her solicitors that they had not yet received a copy of the register of members which they had sought through their solicitors as early as March 2005.
24. It is plain that in each of these three instances of members’ requests for copies of the register, SCL through Mr Benson engaged in deliberate prevarication and delaying tactics in order to defer or avoid its clear statutory obligation to provide access to and copies of the register. Each of the members concerned (Tidswell, Elsom, and Hannan & McQuade) were investors in the fund in substantial amounts, but their requests were simply ignored or evaded for weeks or even months at a time. Either Mr Benson did not know of his obligations under the Act, or he ignored them. If he was unaware of the obligations, the fund was not being operated “efficiently” within the meaning of s 912A(1) because that concept assumes one is aware of the legal rules that constrain one’s conduct: see Kippe v Australian Securities Commission (1998) 16 ACLC 190, at 219. If he was merely ignoring the obligations, he was not acting “honestly”.
25. We are satisfied SCL’s conduct in contravenes the requirement in s 912A(1)(a) that the fund be operated in an efficient, honest and fair manner.
26. SCL’s decision to permit one investor to make an early withdrawal offers another illustration of its management’s poor grasp of the legal obligations of a responsible entity under the Act which are relevant to the assessment of whether the fund is being operated in an efficient, honest and fair manner as required in s 912A. Section 601FC(1)(d) provides:
(1)In exercising its powers and carrying out its duties, the responsible entity of a registered scheme must:
…
(d)treat the members who hold interests of the same class equally and members who hold interests of different classes fairly; …
27. SCL, under Mr Benson’s management, did not comply with the obligation to treat investors equally. The recipient of the unequal treatment in this case was Tidswell Financial Services Limited.
28. This part of the story begins in about September 2004 when Tidswell began pressing SCL to repay Tidswell’s investment of $5 million in the Highwatch project and $1.5 million in the Diamond Bay project together with unpaid interest. At the time, both loans were in default. As part of its tactics to compel repayment Tidswell, acting under s 252B(1) of the Act, requisitioned a meeting of members to be called by SCL as responsible entity. The resolutions proposed by Tidswell were, shortly stated:
·that the members of SCL had no confidence in its management of the Highwatch and Diamond Bay loans;
·that Tidswell be appointed joint manager of those two loans; and
·that Tidswell be appointed to undertake a comprehensive compliance review of the SCL files in relation to those two loans.
The Tidswell requisition also enclosed a statement for distribution and reminded SCL that under s 252B(6) the meeting must be called within 21 days and held not later than two months from receipt of the request.
29. Correspondence and telephone calls then passed between the parties. In a letter dated 1 October 2004 SCL expressed “surprise” that as a fund manager itself Tidswell would claim payment of all outstanding interest. “Obviously”, the letter went on, “this cannot be provided as all investors must be treated equally and fairly … [l]egal advice suggests these requests cannot be complied with”. Tidswell’s offer to waive its insistence on the members meeting only upon being paid, was (SCL said) therefore “unethical and more important unlawful.” For good measure, a threat to claim damages against Tidswell for harm done to SCL’s reputation was thrown in.
30. Despite SCL’s expressed concern about illegality, its solicitors Primrose Couper Cronin Rudkin Lawyers wrote to Tidswell’s solicitors on 14 October 2004 requesting that Tidswell:
·agree to withdraw its request for a s 252B meeting, which would “obviously be detrimental to our client”;
·agree to grant SCL another 60 days to remedy the default on the two loans; and
·if the two loans were not paid out in 60 days, SCL agreed then to appoint Tidswell as manager of those two loans.
31. Further negotiations evidently ensued, but the next material contained in the record is Mr Benson’s report dated 25 November to the Compliance Committee, recording that Tidswell was “trying to call an Extraordinary General Meeting of members” to have SCL removed, and that because this was “a major concern to us” SCL had offered to repay Tidswell’s Highwatch advance to the amount of $5 million, after which (Mr Benson reported) Tidswell would have no standing to call a s 252B meeting. The evidence shows that Tidswell’s loan of $5 million in Highwatch was in fact repaid in several smaller amounts on 20 December 2004, which was only a week outside the 60 days stipulated for in the letter dated 14 October 2004 from SCL’s solicitors Primrose Couper.
32. There can really be no doubt that the motive for refunding the Highwatch loan to Tidswell was the size of its investment and its insistence on pursuing the s 252B meeting. Indeed, in seeking a 60 day period within which to remedy the loan default, Primrose Couper in their letter of 14 October 2004 added a requirement that Tidswell undertake not to call any meetings of members of the fund during that period. Mr Benson’s report of 25 November to the Compliance Committee is evidence of the conclusion of the agreement by SCL to pay out Tidswell in full.
33. Mr Benson seeks to defend SCL’s decision not to pay out anyone but Tidswell. He does so on the basis that if any other investor had sought to withdraw from the same loan, he would have “considered” exercising his discretion to allow that member the same privilege. In saying this, he claims to rely in part upon cl 11.1(b) of the SCL Constitution, which purports to invest the Manager with a “total and unfettered discretion” to permit early withdrawal from a mortgage investment. This is a spurious argument. The reason for deciding to pay out Tidswell is given in Mr Benson’s report of 25 November 2004 to the Compliance Committee. Plainly enough, it was to get rid of the only member (Tidswell) who had a sufficiently large investment (5%) to qualify it to requisition a meeting under s 252B(1)(a). No other member enjoyed that power, and no other member received an offer to pay out its loan in Highwatch.
34. It is also clear that Mr Benson’s reliance on the “absolute” discretion conferred on the Manger by cl 11.1(b) of the SCL Constitution is misplaced. That discretion is as a matter of law necessarily subordinate to s 601FC(1)(d) of the Act requiring the responsible entity, in exercising its powers, to treat members equally. Mr Benson himself admitted as much in his letter to Tidswell on 1 October 2004, in which he claimed to have legal advice to that effect, and expressed surprise that Tidswell, itself a funds manager, would suggest that it alone be paid out. It is, furthermore, not even correct to say that in the end it was Tidswell that asked to be paid out. According to the report to the Compliance Committee of 25 November 2004, it was “we” (ie SCL) who “have now offered to repay [Tidswell’s] investment in Highwatch.”
35. Apart from the size of its investment ($5 million), there was nothing to differentiate Tidswell’s interest in Highwatch from that of any other investor in the fund. They all held interests of or in the same class. Both under s 601FC(1)(d), and as trustee for them all under s 601FC(2) of the Act, SCL was under a duty to treat them equally and impartially. Yet SCL made no offer to anyone else in that class of members to pay out their loans. Plainly it did not treat those members “equally” or, for that matter, “fairly” as required by s 601FC(1)(d). That other members felt aggrieved by this unequal treatment is shown by Mrs McQuade’s telephone call to ASIC on 24 April 2006. The note taken of it records that Mrs McQuade raised “the matter of Tidswell being able to exit Highwatch and that Mr Jeff Tidswell had admitted to her that their exit may not have been lawful.” That can only have been because of contravention of s 601FC(1)(d) of the Act, as Mr Benson himself asserted would be the case in the letter he wrote to Tidswell on 1 October 2004.
36. Section 601FC is a “financial services law” of the purposes of s 912A(1) of the Act. The failure to comply with s 601FC is a contravention of s 912A(1)(c).
37. We turn next to the Delegate’s concerns regarding the extent of SCL’s due diligence in the Highwatch transaction. Highwatch was a project for construction by owner-builder Highwatch Pty Ltd of a building that would house some 54 strata title units on land at Blackwall Point Road, Chiswick, in New South Wales. When SCL first became interested in lending on the project, building work had already started on the site but had been suspended in October 2002 presumably because of lack of funds.
38. Beginning in January 2003, SCL agreed to lend and lent on first mortgage amounts which by August 2003 had increased to $12.535 million. A valuation dated 10 May 2003 obtained from United Valuers Pty Ltd assessed the value of the land “as is” at $9.5 million and on completion of the building at $22.2 million.
39. The report by United Valuers records that, in valuing the property, consideration had been given to “presale” contracts for the sale of 31 units in the building to be constructed that those contracts had already been exchanged for prices totalling in all some $15,878,000. Later, when another valuation was obtained from Auspac International Valuers Pty Ltd in March 2005, Mr Benson specifically asked that “presales” of 27 units be taken into account. Auspac reassessed its valuation on the basis:
·that the units were notionally completed; and
·that the presale contracts were legally enforceable.
40. SCL did not obtain copies of those presale contracts that had been entered into. Those presale contracts were subject to a clause (cl 28.13.1) making them liable to be rescinded if they were not completed within six months (Tracey Brunstrom & Hammond Pty Ltd in their report said the period was 12 months, ie by 22 August 2003) of contract date.
41. Before advising Auspac to make use of the presales contracts in preparing their valuation in March 2005, SCL does not seem to have taken account of the fact that some of the would-be purchasers may already have decided to rescind their contracts. Some time earlier, in January 2005, Ms Janice Blyton, an SCL employee, had been instructed to contact purchasers and ask if they intended to proceed. She was able to speak to only about four of them, who said they intended to proceed with their purchases. No record was kept of these conversations. In addition, a statement obtained from a Mr Peter Kanaghines asserts that in December 2004 he offered to buy a number of the units “off the plan”. A further statement from him says simply that he was “interested” in purchasing 27 units. Looking at what he says, it clearly does not amount to anything approaching a binding or enforceable contract to purchase any units. Being “interested” is not agreeing to purchase.
42. It is apparent that the valuers who were presented by SCL with information about the presales contracts regarded it as supporting the valuations that they went on to make in 2003 and again in 2005. In fact, Mr Benson has been told by the principal of Highwatch, a Mr John Mhanna, that the contracts did not exist at all but were fabrications set up for the purpose of obtaining finance from SCL. Mr Benson now seems to be resiling in some measure from his previous statements on this matter, but there is a letter dated 1 October 2004 signed by him from SCL to an investor Tidswell Financial Services asserting that in December 2003 Mr Mhanna had confirmed that the presales were “fraudulent”, as were various insurance polices he produced to SCL. Despite knowing this, Mr Benson represented the presales to the Auspac in March 2005 as genuine purchases.
43. SCL in fact never saw the 31 (or the 27) presales contracts that were said to have been entered into by prospective purchasers. Instead, Mr Benson was provided by the solicitor for Highwatch with a list of 31 names and addresses of purchasers, together with details of the units said to have been purchased and the prices making up the total of $15,878,000. In addition, a copy of the front page of each contract was supplied to him together with a full copy of an individual example of one of them. The clear inference is that these documents were concocted for the occasion by Mr Mhanna in order to enable him to obtain finance from SCL.
44. Whether complaints of obtaining by false pretences have ever been made about it to the police does not emerge from the material before us. It is, however, clear that SCL should not have allowed this relatively simple kind of fraud to be practised upon it. Mr Marshall protested that even banks, with all their experience and resources, are sometimes defrauded; but banks engage in lending their own money, whereas SCL is a trustee that lends other people’s funds: see s 601FC(2).
45. There are obvious risks in acting in reliance on only the first page as evidence of the existence of a contract and of its terms. Quite apart from fraud, there may be and often are special conditions of contract that confer on the purchasers what is in effect an option to terminate or rescind if a condition is not fulfilled in time or otherwise. Clause 28.1.13 is an example in the present case: see, for example, Meehan v Jones (1982) 149 CLR 571 (subject to finance) and Gange v Sullivan (1966) 116 CLR 418 (subject to Council approval).
46. In addition, there were other and reasonable steps that were open to SCL and Mr Benson to guard against fraud by confirming the genuineness of the contracts. Mr Benson could have insisted that he be shown entries in trust accounts and bank statements recording receipt of deposits paid under the contracts. (This was suggested by the investigating accountants McGrath Nicol in their report dated 21 October 2005). When amounts as large as $12.5 million are being lent, it behoves the lender to do more than telephone four would-be purchasers to find out if they are genuinely intending to buy or complete. Mr Benson claimed he was entitled to rely on the word of Highwatch’s solicitor that the presale contracts had been entered into; but there is nothing to show that the solicitor was doing more than simply passing on to SCL the instructions he received from his client Mr Mhanna of Highwatch Pty Ltd. It was not as if the solicitor gave his personal undertaking that the presales were genuine. He may have known no more about it than SCL, who learnt what it knew from Mr Mhanna.
47. We conclude that in the matter of the Highwatch Loan transactions, SCL failed to fulfil its duty of due diligence under the statute. That conclusion suggests SCL has breached its duty under s 601FC(1)(b) of the Act. That provision is a “financial services law” for the purposes of s 912A. We therefore conclude the applicant has contravened s 912A(1)(c) of the Act.
48. We next turn to the Delegate’s concerns about the extent of due diligence in relation to the loans on the Diamond Bay project. Consistent with its conduct in relation to the Highwatch loan, SCL (then known as Parker Simmonds Securities) relied on the front pages only of presales contracts, and not full copies of the contracts themselves, in raising loans of over $6.4 million to Diamond Bay Constructions Pty Ltd. It was an investment that was to proceed on the security of first and second mortgages over land at Diamond Bay Road, Vaucluse, on which the borrower was constructing 13 apartments.
49. The Investment Proposal issued by SCL in respect of it is dated 7 February 2003. Opposite the heading “Pre Sales” it contains a statement that “[t]o date 40% of the development is already pre sold” involving six swellings totalling $8,391,420. This statement is repeated at page 5 of the Proposal, where it is said that:
We have received the contracts, together with confirmation from Sid Hawach & Associates Solicitors dated 30th January 2003, confirming the status of the presales.
50. Details of the six apartments presold are then set out in tabular form together with presale prices for each of them.
51. From later statements by Mr Benson, the claim that SCL had in fact “received” the presales contracts was evidently false and known by Mr Benson to be so. All that SCL ever received was the front pages of six presale contracts for purchase of the apartments in question. Mr Benson knew this to be so because he received them under cover of a letter to SCL dated 30 January 2003 from Sid Hawach & Associates Solicitors of Parramatta. Although it is not as explicit from the Investment Proposal as perhaps it should be, Sid Hawach & Associates were presumably the solicitors acting for the borrower Diamond Bay Constructions Pty Ltd.
52. As a result of this false statement about receipt of the contracts and their knowledge of its falsity, SCL and Mr Benson appear to have fulfilled the two requirements on which liability depends at common law under Derry v Peek (1889) 14 App Cas 337. According to Mr Benson’s account, he also telephoned Sid Hawach & Associates and received an assurance that the “contracts of sale are in [the] safe custody file” in the solicitor’s office. There is a handwritten notation to that effect on the letter of 30 January 2003. What more, Mr Benson asks, could he have done to protect SCL against the risk that these presale contracts were fictitious, as at least one of them (in the name of a Mr Joseph Daboul) appears to have been?
53. Whatever Mr Benson may have been told on the telephone, receipt of the presale contracts (and not merely their front pages) was significant in this instance for a number of reasons:
·It remains the fact that SCL never received “the contracts” from Sid Hawach & Associates, contrary to the assertion in the SCL Investments Proposal dated 7 February 2003.
·On 10 August 2003, when Ferrier Hodgson were appointed receivers and managers of Diamond Bay Constructions Pty Ltd, they asked Mr Sid Hawach for copies of those contracts of sale; but he advised he did not have any copies.
·Ferrier Hodgson then asked Mr Greg Wallace of SCL for copies; he said he was not in possession of any of the presale contracts.
·Mr Hawach advised Ferrier Hodgson that all of the presales contracts had been delivered to a Mr McHarg, solicitor for Diamond Bay Constructions; Mr McHarg in turn denied he had ever received the contracts.
54. Ferrier Hodgson’s interest in seeing the complete contracts was prompted by references in cl 32 and cl 40 of the special conditions of contract suggesting that another provision in cl 19 (which they did not have) provided for rescission of those contracts pursuant to a “sunset” clause if the plan of subdivision was not registered by a certain date. Mr Hawach informed Ferrier Hodgson that one of his colleagues had written to all purchasers rescinding their contracts under that sunset clause. This, then, was another instance in which the investment would not or could not safely have proceeded if full copies of the contracts had been obtained and examined to reveal the presence of this sunset clause. When, as in this case, millions of dollars are being invested partly on the assumption that as much as 40% of the apartments have been presold, it is unnecessarily niggardly to be satisfied with only the front pages of the contracts. Even if Mr Benson is perhaps not competent to realise the legal significance of printed special conditions, there are surely others who are capable of doing so and of advising him accordingly.
55. The McGrath Nicol independent accountants’ report of 21 October 2005 notes that SCL “has been a victim of misrepresentation from borrowers at the pre-lending stage” including “falsified pre-sales agreements”. Noting that it will always be hard to detect fraudulent activities, the accountants recommend that all pre-lending documents should be “interrogated as much as possible”; and, by way of example, that SCL “should contact the lawyers involved with pre-sale contracts to ensure deposits are held in the trust accounts.” We have already made the comment that obtaining copies of the trust account receipts and bank statements recording deposits under the contracts is a precaution that would go some way to preventing frauds of this nature.
56. In the circumstances, we are satisfied the facts disclose a contravention of s 601FC(1)(b) of the Act. Given that provision is a “financial services law” for the purposes of s 912A, we accept there has been a contravention of s 912A(1)(c) of the Act.
57. We do not share ASIC’s concerns about conflicts of interest and disclosure. The conflict was said to arise out of the fact that SCL was dealing in both first and second mortgagees. ASIC says the interests of those two groups were in conflict, and SCL had not disclosed or managed that conflict appropriately. In particular, it is said not to have disclosed:
·the relevant loan to value ratio when first and second mortgages were proposed over the same property;
·that conflicts were created for SCL when managing funds on behalf of both first and second mortgage investors;
·that an increased risk of loan default is borne by a first mortgage when funds are advanced on second mortgage security at higher interest rates before the loan on first mortgage was fully taken up.
58. We turn firstly to the concerns about the loan to value ratio (“LVR”). The LVR is always relevant to the discussion of a mortgage security whether first, second, or a combination of both. The concern here appears to be that when first and second mortgages are to be granted over the same property, the combined LVR should be specified in the investment proposal, and that SCL’s proposal for first mortgage investors failed to disclose this information. We agree with the Delegate that it would be preferable to do so, although we also agree with SCL that, if the amounts being advanced under second mortgage are disclosed, it is a comparatively simple calculation to arrive at a combined LVR for both advances. We are not prepared to find that the failure to include the information in the investment proposal amounts to a failure to disclose something that should have been disclosed: see s 728 of the Act.
59. The second concern is the potential for conflicts to arise in managing funds on behalf of first and second mortgages that are secured over the same property. There is a reference to “the duties owed by mortgagees to one another at law”; but it is extremely doubtful if a first mortgagee owes to a second mortgagee any specific duty, legal or equitable, going beyond the duty owed by a first mortgagee to a mortgagor. In Downsview Ltd v First City Corporation Ltd [1993] AC 295, at 317, Lord Templeman, speaking on behalf of the Privy Council in an appeal from New Zealand, said:
A mortgagee owes a general duty to subsequent encumbrancers and to the mortgagor to use his powers for the sole purpose of securing repayments of the moneys owing under his mortgage and a duty to act in good faith. He also owes the specific duties which equity has imposed on him in the exercise of his powers to go into possession and his powers of sale.
60. As regards the power of sale, the duty is commonly stated to be that of ensuring that the property is sold at the “best price” or the market value: see Cuckmere Brick Co v Mutual Finance Ltd (1971) Ch 949; Commercial & General Acceptance Ltd v Nixon (1981) 152 CLR 491; Downsview Ltd v First City Corporation Ltd, above; and Property Law Act 1974 (Qld), s 85. We do not see in these authorities any reference to a special duty owed by one mortgagee to another that is not also due from a mortgagee to a mortgagor, which is the duty we have stated above. The occasion for conflicts between the legal duties owed to different mortgagees is therefore extremely limited if it exists at all.
61. The Delegate was also concerned about an increased risk of default. Because principal and interest due to a first mortgagee must always be paid in priority, the second mortgagee is necessarily at a disadvantage if the security is inadequate to pay out both mortgages in full. But this is known and notorious to second mortgage investors, who in consequence commonly insist on payment of higher rates of interest on their loans. What is said is that this feature also carries an increased risk of default under the first mortgage, which ought therefore to be disclosed. We do not appreciate the force of this concern. The real problem is that the mortgagor has borrowed more than he is able to pay, not that he has borrowed on the security of a second as well as a first mortgage. After some initial hesitation, the law in four Australian States now compels a first mortgagee to produce the certificate of title to facilitate registration of a second mortgage. The principal exception is New South Wales (of which at the hearing Mr Benson was evidently not aware): see Hypec Electronics Pty Ltd (in liq) v Registrar General (2005) 64 NSWLR 679, where the law in Queensland, Victoria, Western Australia, and South Australia, as well as New South Wales is discussed.
62. The only occasion we can identify giving rise to potential conflict between first and second mortgagees in the management of their interests is where a first mortgagee is planning to sell the secured property on a rapidly falling market. In such circumstances there is a tendency on the part of both mortgagor and second mortgagee to urge postponement of sale for as long as possible in the hope that market conditions will improve and produce a better price. Instead, as often as not, they deteriorate, with consequent loss to both. Since, however, the duty of the first mortgagee in selling always is to obtain the best or market price, it is seldom, if ever, that any such conflict can arise. At all events, we do not see this as a form of conflict that must be specifically spelled out to first or second mortgagees. It is inherent in all cases in which the mortgagor exceeds his ability to pay, and is obvious to all investors once they are made aware of the existence and amount secured on the same property by successive mortgages and the LVR that they represent.
63. The same holds good of the Delegate’s concern that, if funds are secured on second mortgage at higher interest rates before the total amount to be lent on first mortgage is fully taken up, there is an increased risk to the first mortgagee that the mortgagor will default. But this is simply a consequence of the mortgagor over-extending himself and becoming unable to meet all his commitments in full. It is an obvious risk of borrowing more than he can pay, and is quite independent of whether or not the borrowing is secured by mortgage or a second mortgage. It does nothing to disturb the recognised right of the first mortgagee to be paid both principal and interest in priority to other creditors.
64. In the end, we do not consider that the Delegate’s concerns in relation to these matters were justified. We do not accept there was a contravention of s 12DA of the ASIC Act or s 728(1)(b) of the Act. It follows the conduct we have described above does not give rise to any issues under s 912A.
65. We turn next to the Delegate’s concerns about the internet website advertising. The concern arose in this way. SCL issued a product disclosure statement (“PDS”) on 11 March 2004. ASIC became concerned about the PDS and placed an interim stop order on the PDS on 9 September 2005. A Statement of Concerns was issued that identified a number of matters in the PDS that ASIC regarded as shortcomings. An order was subsequently made with the consent of SCL on 29 September 2005 under s 1020E(2) of the Act. That order prevented SCL from raising any money or offering any interest in the fund using or relying upon the PDS. A further PDS was issued on 10 October 2005. An interim stop order was subsequently placed on the new PDS on 17 January 2006, and an order was made under s 1020E(2) of the Act in relation to that PDS on 3 February 2006.
66. After the order was made under s 1020E on 29 September 2005, ASIC became aware that SCL’s website included some statements that formed part of (or were similar to statements contained in) the PDS that had been withdrawn. ASIC wrote to SCL on 24 October 2005 about the statements. SCL’s external lawyer responded the same day and the website was shut down the following day.
67. SCL argues the material on the website was posted or retained in error, but says the error was of no practical import. Mr Benson gave evidence that he was under the impression SCL’s external lawyers had reviewed all of the material on the site and had liaised with ASIC to ensure the material was unobjectionable. He pointed out in his testimony that the external lawyers in question were, to his knowledge, experienced in dealing with ASIC in relation to matters of this kind. It was also pointed out in submissions that the material in question was removed less than a month after the PDS had been withdrawn and the order made, and that in any event the applicant acted immediately when the problem was brought to its attention. Given the fund was not soliciting any new investors during the period following the withdrawal of the PDS, it was argued there was no possibility of harm to the investing public.
68. We accept the failure to remove the material from the website did not of itself put the investing public at risk in the circumstances. Anyone who may have been misled by the conduct would not have sustained any damage. We are nonetheless concerned that the incident suggests a systemic weakness in SCL’s management. Mr Benson was under the impression external lawyers were constantly monitoring and reviewing the material. He was wrong. It was unclear whether SCL had any formal process in place for carrying out the important task of vetting and approving what it was saying on its website. Given the importance of websites as a source of information, that is a serious matter. The failure to have in place adequate procedures for addressing the risk reflects upon the efficiency of SCL’s operations.
69. In the circumstances, we are satisfied SCL has breached its obligation under s 912A(1)(a) of the Act to operate the fund in an efficient, honest and fair manner.
70. We turn next to the Delegate’s concerns about the adequacy of disclosure in relation to the St Kilda Road property. Loans had been advanced from the fund to the developer of the Somerset Place apartment complex. The developer had defaulted on its obligations under the loan agreements and the fund took possession of the property. After the property failed to sell at auction, the supplementary product disclosure statement (“SPDS”) disclosed that the fund decided “to take charge of the development with the intention of completing construction of the development and selling the apartments individually.” Perhaps unsurprisingly, the fund had difficulty selling the units.
71. ASIC says SCL should have provided more detail in the SPDS about the risks associated with the fund taking over the development. SCL says the only risks associated with the proposal were the obvious ones that arose out of a declining market. It relied on the example of a Mrs Julie-Ann Tadich who invested $130,000 in the fund on 13 December 2004 after having received the PDS and SPDS issued by the fund earlier that month. She was provided with the epitome of mortgage on 22 December 2004. On 23 December 2004, she received a further letter from SCL explaining its new plans for the properties: it said it now intended to transfer the whole complex to a property syndicate managed by another responsible investor. SCL no longer planned to sell the individual apartments as it had foreshadowed in the SPDS because it concluded investors were likely to sustain substantial losses on the falling property market. The real difficulty for Mrs Tadich was that the fund stopped paying interest to investors in the St Kilda project from 1 February 2005. (There was confusing evidence over whether some investors may have continued to receive interest payments from another fund, but ASIC says Mrs Tadich was not one of those people.) The Delegate says SCL’s decision to transfer the project to another entity shortly after it accepted Mrs Tadich’s money supported a conclusion that the project must have been especially risky.
72. One could argue SCL was taking on additional risk when it decided to take over the development because SCL was not an experienced developer – but SCL never pretended that it was. It explained its decision in the SPDS by reference to the deteriorating property market. Its proposal was clearly extraordinary. The risks associated with the course of action set out in the SPDS were self-evident to investors. We are not satisfied the evidence establishes that SCL had devised the alternative arrangement of transferring the property to another entity at the time Mrs Tadich made her investment.
73. We disagree with the Delegate’s decision that there were additional risks that should have disclosed to investors. It follows we are not satisfied the material suggests a contravention of ss 1021D and 1021E of the Act, and thus no contravention of s 912A(1)(c).
74. The last of the Delegate’s concerns arose out of SCL’s handling of a loan to Metro Ink Pty Ltd. A supplementary prospectus dated 11 July 2002 that was issued in connection with the project said the loan would be secured by way of a second mortgage charge and guarantees over the borrowers’ assets. This requirement had been explained to the borrower and SCL (then known as Parker Simmonds Securities) instructed its lawyers, Messrs Parker Simmonds, to finalise the arrangement by obtaining the security. As it happened, the security arrangements were not obtained. SCL argued in these proceedings that the omission to obtain the security was a failure on the part of its lawyers: SCL had done all that it was required to do when it gave the instructions. We were told SCL was considering its options to take action against its lawyers. We have already observed that the two principals of that firm are also directors of SCL. In any event, SCL argues the whole sorry affair does not reflect upon its management of the fund.
75. ASIC disagrees. The Delegate pointed out the security would have been worthless even it had been obtained as the assets either did not exist, or were worthless. ASIC says SCL was not diligent when it investigated the value of the assets over which it proposed to take security. Mr Benson appeared to play down the significance of the guarantees in his statement (Exhibit 4, at page 31 [19.7]) although one wonders why they were discussed in the SPDS if they were “merely a bonus”. ASIC also argues SCL should have been more conscientious in its dealings with Parker Simmonds. SCL should not have assumed its instructions were being followed without more given that relatively large amounts of investors’ money were at stake.
76. We are troubled by SCL’s assumption that its solicitors had followed instructions. We do not suggest that a client like SCL is required to supervise every aspect of its lawyers’ conduct. But it was dealing with large amounts of money, and it did have a potentially difficult relationship with its lawyers who were not independent. SCL should have had a process in place that triggered further inquiries when the solicitors failed to confirm that they had carried out the instructions. “Instruct and forget” is not an acceptable way of doing business in a responsible entity. The absence of proper processes suggests to us that SCL has not satisfied its obligations to act efficiently, honestly and fairly in contravention of s 912A(1)(a), although we acknowledge Mr Benson’s claim in his statement (Exhibit 4, at page 31 [19.6]) that a process has since been put in place.
77. We are also troubled by what appears to be SCL’s failure to take steps to ensure the borrower had assets of sufficient value to satisfy its obligations under the security arrangements. Mr Benson sought to explain this by minimising the importance that was attached to the security arrangements in question. As we noted above, he said they were “merely a bonus”.
78. We accept reasonable managers might disagree over how much collateral is required in a particular case, and what form the security arrangements should take. We do not have sufficient evidence before us to reach a view as to whether SCL had adopted a proper or adequate process for making that decision. We are not prepared to infer SCL did not have such a process simply because the borrowers’ assets turned out to be insufficient. We do not think we can positively conclude SCL should have sought alternative security or declined to make the advance.
Summary of findings
79. We do not agree with all of the Delegate’s findings. We have reached a different view in particular in relation to the questions of conflict and disclosure associated with making loans on first and second mortgages. We also disagree that SCL should have made further disclosure of special risks associated with its decision to take over the St Kilda project. But we agree that there have been a number of breaches of the Act and of the ASIC Act. Not all of the breaches are equally serious; we are particularly troubled by the way in which SCL dealt with the requests for access to the register of members and the decision to allow one troublesome investor to exit the fund when other investors were not treated equally. In any event, we are satisfied the applicant has failed to comply with its obligations under s 912A of the Act.
Exercising the discretion
80. We have already noted we have the power under s 915C to suspend or cancel the licence. Counsel for SCL suggested an alternative course might be to impose conditions, although we note the power to impose conditions is contained in s 914A, which is found in Pt 7.6, Div 4 Sub-div B of the Act. This is an appeal against a cancellation decision. Section 915J says that a licence may only be varied, suspended or cancelled under Pt 7.6, Div 4 sub-div C. The power to vary a licence that is contained in s 914A does not appear to be available in this case, so we are left to consider our options under s 915C. That section does not permit us to impose conditions.
81. The power to suspend or cancel a licence like the one in question here must be exercised having regard to the purposes of the regulatory regime. The purposes of the regime can be gleaned from the Act and from the ASIC Act.
82. Section 760A of the Act says Ch 7 is intended to promote:
(a)confident and informed decision making by consumers of financial products and services while facilitating efficiency, flexibility and innovation in the provision of those products and services; and
(b)fairness, honesty and professionalism by those who provide financial services; and
(c)fair, orderly and transparent markets for financial products; and
(d)the reduction of systemic risk and the provision of fair and effective services by clearing and settlement facilities.
83. Section 1 of the ASIC Act identifies a series of objects for ASIC. Some of those objects are relevant to this discussion given the Tribunal steps into ASIC’s shoes when making its decision. In particular, s 1(2) provides ASIC must seek to:
(c)maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and
(b)promote the confident and informed participation of investors and consumers in the financial system; …
84. A licence should only be suspended or cancelled if it is necessary to do so in order to accomplish the objects of the legislative scheme. A suspension will ordinarily be preferable if there is a reasonable prospect that the licence-holder can remedy the defects which prompted the concern. If there is no reasonable prospect of the issues being resolved, cancellation may be the appropriate course. The power to suspend or cancel should not be used merely to punish the licence-holder for transgressions: see Story v National Companies and Securities Commission (1988) 13 NSWLR 661.
85. While we note SCL is not currently soliciting or accepting investments into the fund, it remains open to SCL to resume its operations while it holds a licence. We have concluded SCL has serious internal problems. Those problems create an unacceptable risk to the investing public. It follows SCL should not be permitted to resume operating under the licence.
86. Should the licence be suspended or cancelled? In the circumstances, we are satisfied that suspension is the appropriate course for now. We explained at the outset of our analysis of the evidence that the central problem for SCL was its reliance on Mr Benson to oversee its operations. Mr Benson does not possess (or have appropriate everyday access to) the legal skills required to conduct the fund in accordance with its obligations under the law. In our view, this serious shortcoming could be rectified comparatively easily by introducing new personnel into SCL who possess the appropriate authority, experience and skill to supervise the entity’s staff and manage its activities. That individual (or those individuals) could then review and, if necessary, overhaul SCL’s policies and procedures. That review would presumably extend to reviewing the constitutional documents of SCL which appear to be at odds with the obligations imposed under the Act. We are not satisfied it is necessary to cancel the licence in order to achieve the objectives of the legislative scheme unless SCL is unable or unwilling to make the appropriate personnel changes within a reasonable time.
Conclusion
87.The decision under review is set aside. We decide in substitution that:
(a)the applicant’s Australian Financial Services Licence is suspended pursuant to s 915C of the Act for a period of 12 months from the date of this decision;
(b)ASIC may lift the suspension before the 12 month period has elapsed if the applicant is able to establish to ASIC’s reasonable satisfaction that the applicant has engaged a person with appropriate authority, experience and skill to supervise the applicant’s staff and manage its activities in accordance with the applicant’s obligations under s 912A of the Act; and
(c)if the applicant fails to engage an appropriate person as contemplated in sub-par (b) (above) within 12 months, the applicant’s licence shall be cancelled.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of the Honourable Dr B H McPherson CBE, Deputy President, and Senior Member Bernard J McCabe.
Signed:.............................[Sgd].................................................
Michael Buckingham, AssociateDates of Hearing 11-12 June 2008
Date of Decision 8 October 2008
Counsel for the applicant Mr H Marshall, SC
Solicitor for the applicant McInnes Wilson Lawyers
Counsel for the respondent Mr M PlunkettSolicitor for the respondent Australian Securities & Investments Commission
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