Justice Jonathan Beach of the Federal Court of Australia found Retail Employees Superannuation (Rest) did not make false or misleading statements between March 2015 and May 2018 about a member’s ability to transfer, or “rollover”, between superannuation funds.
“Rest accurately conveyed to members what its rules and practices were. Its factual statements about that to members were accurate. Moreover, any opinions expressed as to the law were based on reasonable grounds,” Justice Beach said in his written reasons.
The Australian Securities and Investments Commission (ASIC) alleged Rest discouraged, delayed or prevented its members from transferring some or all of their funds to another superannuation trustee and denied them their lawful rights to portability and choice.
Specifically, ASIC accused Rest of informing members they needed a minimum of $5,000 in their accounts if they remained employed by the same company who had been making the Rest contributions.
If the employer was willing to contribute to another fund, Rest allegedly told members they needed an employer declaration.
On the other hand, if the employee was no longer employed by that same company, Rest allegedly told its members to obtain a separation certificate or confirmation of their termination date and provide this to Rest before the balance could be transferred.
Rest told the court it was entitled to request information, like a member’s employment or termination date, to establish whether the member requesting the rollover request was a determination member or whether further contributions would be received.
Justice Beach said even if ASIC’s allegations were true and those statements did convey inappropriate representations, Rest could not be found to have made false or misleading or deceptive statements because “they correctly reflected the legal position”.
“In summary, even if ASIC had been correct on the construction question concerning ‘member’s interest in the fund’, it still has not made out its case as to the falsity of the statements made or that they were misleading or deceptive or likely to mislead or deceive,” Justice Beach determined.
The proceedings were dismissed and ASIC was ordered to pay 80 per cent of Rest’s costs.
