The Administrative Appeals Tribunal (AAT) has affirmed ASIC’s decision to permanently ban Ms Tracey Joanne Burnell, of Victoria, from providing financial services.
Between 2014 and 2017, insurance contracts were arranged by two companies controlled by Ms Burnell, Landlord Protection and Collection Pty Ltd (LPC) and Landlord Protection Group Pty Ltd (LPG). During the relevant period, neither LPC or LPG held an Australian Financial Services (AFS) licence or were authorised to provide financial services, save for a short period of time in which LPG was authorised by an insurance broker. ASIC permanently banned Ms Burnell from providing financial services and Ms Burnell subsequently applied to the AAT to review ASIC’s decision (17-417MR).
On 19 October 2020, the AAT rejected Ms Burnell’s submission that LPC and/or LPG were authorised to arrange insurance contracts in the way that they did because her companies acted as representatives and therefore must have been authorised representatives.
Additionally, the AAT found that ASIC was justified in making a banning order under s920A of the Corporations Act because:
- LPC contravened sections 911A, 911B and 1041H of the Corporations Act;
- Ms Burnell, as LPC’s sole director and controlling mind, was involved in LPC’s contraventions of sections 911A, 911B and 1041H of the Corporations Act; and
- there is reason to believe that companies controlled by Ms Burnell are likely to contravene a financial services law and that she is likely to be involved in that contravention.
The AAT found that a permanent ban was appropriate given that Ms Burnell:
- had been banned from providing financial services previously;
- emerged from the ban repeating the offending behaviour;
- compounded that repeat offending behaviour through multiple companies that engaged in the offending behaviour after emerging from her first ban;
- caused her offending companies to engage in behaviour charging insurance premiums that were misleading and deceptive; and
- maintained that acting without the requisite authorisation formality is permissible.
The decision reinforces the need for any person providing financial services to hold an AFS licence or to be authorised to provide such services by an AFS licence holder and that authorisation to provide financial services on behalf of an AFS licence holder must be lodged in writing with ASIC within 15 business days.
Ms Burnell has 28 days to appeal the AAT’s decision to the Federal Court.
