Sherwal and Australian Securities and Investments Commission [2022] AATA 4192 | Case summary

The June 2021 decision is varied in the following respects:

Sherwal and Australian Securities and Investments Commission [2022] AATA 4192 | Case summary | Zoe

[16]

(c) 31 December 2012:- Diploma of Financial Services (Financial Planning). > > (d) 7 October 2013 to 20 July 2015:- an authorised representative of The Complete Planner Pty Ltd (an Australian Financial Services licence ("AFSL") holder) and also the sole shareholder and director of Coober Australia Pty Ltd.[1] Coober Australia was itself also an authorised representative of The Complete Planner. > > (e) 22 July 2015 to 4 May 2016:- an authorised representative of Wealth Resort Management Pty Ltd ("WRM") and an employee or representative of Yes FP Pty Ltd ("Yes FP"). WRM was an AFSL holder and Yes FP was an authorised representative of WRM.[2] > > (f) 6 September 2016 to 8 February 2017:- as the principal of Coober Australia Pty Ltd ("Coober") which, during this period, was an authorised representative of Investors Direct Financial Planning Pty Ltd. > > (g) 3 January 2017:- Advanced Diploma of Financial Planning. > > * (h) 6 March 2017 to 23 October 2017:- as an authorised representative of Dover Financial Advisers Pty Ltd ("Dover") and the principal of Coober Australia Pty Ltd (which was itself also an authorised representative of Dover during the same period).[3] > > > (i) 6 March 2018 to 23 October 2018:- an authorised representative of CGF One Pty Ltd, another AFSL holder).[4] (On 27 August 2018 the company changed its name to State Advice Pty Ltd.) > > > > (j) June / July / August 2019 to November 2019:- a contentiously characterised, and perhaps broken, period of involvement first with Ansa Finance Pty Ltd and then AFSL Group Pty Ltd. (Ansa Finance provided loans to financial services clients of AFSL Group Pty Ltd. ASIC claimed that Mr Sherwal provided financial advice to clients of AFSL Group. Mr Sherwal claimed that he only performed "back office" work for Ansa Finance Pty Ltd:- see paragraphs 39 to 48 below.) > > > > (k) 27 Nov 2019 to June 2020:- an authorised representative of AFSL Group Pty Ltd, another AFSL holder. > > > > (l) 22 June 2020:- Mr Sherwal ceased to operate as a financial planner.

[17]

In April 2016 ASIC had begun to investigate WRM's conduct as an AFSL holder and, in particular its participation in a "cash rebate" procedure. (The elements of the "cash rebate" procedure are discussed in paragraph 25 below.) That investigation ultimately culminated in Federal Court proceedings and, in February 2018, WRM being restrained from promoting or being involved in any such procedure:- see paragraphs 23 and 24 below.
Subsequently, on 29 April 2020, during the period of his status as an authorised representative of AFSL Group Pty Ltd, ASIC served Mr Sherwal with a concerns notice. The notice informed Mr Sherwal that it was considering making an order under sections 920A & 920B of the Corporations Act 2001 ("CorpAct") banning him from providing financial services, because of apprehensions about (amongst other things) his fitness, training and competence to provide financial services advice.
The focus of ASIC's April 2020 concerns notice was advice Mr Sherwal had given to three clients during the 9 month period in 2015 / 2016 when he had been an authorised representative of WRM, and to another three clients (and to a former WRM adviser colleague) during the 7 month period in 2017 when he was an authorised representative of Dover . Mr Sherwal had advised all six clients, and the former colleague, in the context of their participation in a "cash rebate" procedure.
ASIC elaborated upon its concerns in a 32 page annexure to the 29 April 2020 notice. That elaboration was itself referenced to the contents of some 72 accompanying documents. ASIC's fundamental concern, as expressed in the notice, was that the "cash rebate" process had involved Mr Sherwal in both promoting, and deriving a personal financial benefit from, unauthorised superannuation fund payments, contrary to Superannuation Industry (Supervision) Act s 68B(1). ASIC regarded Mr Sherwal's participation in the "cash rebate" process, specifically in the content of the advice he gave to the six specific clients, as demonstrating either a lack of awareness, or a failure to comply with, his obligations and, therefore calling into question both Mr Sherwal's fitness, and his competence, to provide financial services.
In August and December 2020 Mr Sherwal responded to ASIC's concerns notice, and provided brief written submissions. In those submissions Mr Sherwal:-

[31]

(a) the general requirement for a person to hold an AFSL, or the status of an "authorised representative" of such a licensee, to be able to carry on a "financial services business", or to be an employee of an entity involved in providing a "financial service" on its behalf:- see CorpAct ss 911A & 766A766D > > (b) the prohibition on false claims to have an entitlement to provide financial services:- see CorpAct s 911C > > (c) the requirement of an AFSL holder to (i) "do all things necessary to ensure" the efficient, honest and fair provision of their financial services, (ii) have in place "adequate arrangements" to manage conflicts of interest, (iii) comply with "financial services laws", (iv) comply with their licence conditions (conditions that typically include ensuring the competence, training and individual assessment, of anyone who provides "financial product advice" on the licensee's behalf) and, (v) have in place adequate arrangement to compensate retail clients for any obligation breach:- see CorpAct ss 912A(1)(a), (b), (c), (f) & 912B > > (d) the declaration that "financial services laws" relevantly include duties "even if the provision imposing the duty is not an offence provision or a civil penalty provision":- see CorpAct s 920A(1B) > > (e) the requirement of an AFSL holder to report to ASIC any actual or apprehended significant breach of its obligations under s 912A (ie., including compliance with the licence conditions):- see CorpAct s 912D > > (f) the authority of an AFSL holder to appoint as an "authorised representative" (and to revoke any such appointment) a person who meets certain stipulated educational and training standards (:- CorpAct ss 916A(3)-(5); 921C(2) > > (g) a provision that the stipulated standards include (i) an approved academic qualification, (ii) satisfactory completion of an ASIC examination and, (iii) annual completion of required continuing professional development:- CorpAct s 921B > > (h) the requirement of an AFSL holder who appoints a person (an "authorised representative") to provide financial services on their behalf, to:- > > > (i) provide an appropriate written authority:- see CorpAct s 916A(1) > > > > (ii) specify the services the person is authorised to provide:- see CorpAct s 916A(2) > > > > (iii) formally notify ASIC of the appointment, its revocation or alteration:- see eg CorpAct s 916F > > > > (iv) take reasonable steps to ensure that its representatives comply with financial services laws:- see CorpAct s 912A(1)(ca) > > > > (v) ensure that its representatives are competent, and adequately trained, to provide their authorised financial services:- see CorpAct s 912A(1)(f) > > > (i) the general joint and several liability of AFSL holders and representatives, and the potential joint and several liability of licensees for the conduct of their common "representatives":- see CorpAct s 917A-917F > > > > (j) ASIC's obligation to maintain a publicly accessible register of AFSL holders, authorised representatives, and persons subject to banning and disqualification orders:- see CorpAct s 922A & 922B > > > > (k) the restriction on the use of certain terms (eg. claims of independence, impartiality or lack of bias) in relation to a financial services business:- see CorpAct s 923A > > > > (l) the general obligation (of AFSL holders and authorised representatives) to provide retail clients with a current "Financial Services Guide":- see CorpAct ss 941A, 941B, 941C & 941F > > > > (m) the statutory obligation of a person who provides "personal" financial product advice to (i) act in the client's best interests, (ii) provide appropriate advice to the client, (iii) warn the client where any advice is based on apparently incomplete or inaccurate information and, (iv) give priority to the client's interests, whenever they conflict with those of the advice provider:- :- see CorpAct ss 961B(1), 961G, 961H & 961J > > > > (n) the exegesis that acting in a client's "best interest" involves identifying the clients particular objectives, needs and circumstances, and adherence to an objective standard of reasonable expertise, care, investigation and regard to the client's circumstances:- see CorpAct ss 961B(2) to 961E > > > > (o) the general obligation (of AFSL holders and authorised representatives) to provide retail clients with a formal "Statement of Advice" when they provide "personal advice" to a client:- CorpAct ss 944A-946C. (A person provides "personal advice" when their advice considers (or where a reasonable person might expect the adviser to have considered) the recipient's "objectives, financial situation and needs"):- see CorpAct ss 766B(3) & (4) > > > > (p) the requirement that an authorised representative's Statement of Advice to clients include (amongst other things) any information about the representative's remuneration that "might reasonably be expected to be, or to have been, capable of influencing (the representative) in providing the advice":- see CorpAct s 947C > > > > (q) a requirement that any recommendation to "switch" between financial products must be accompanied by specific additional advice about the costs, and any significant other consequences, of implementing the recommendation:- see CorpAct s 947D > > > > (r) the potential client entitlement to compensation for any loss or damage caused by an adviser's failure to comply with their "best interests" obligations in relation to the provision of "personal advice":- see CorpAct s 961M.

[43]

The cash rebate procedure WRM employed was the focus of the Federal Court of Australia proceedings that ASIC brought against three companies in March 2017. The three defendant companies were WRM, Yes FP and Jeca Holdings Pty Ltd ("Jeca"). Mr Fuocco was the sole shareholder of each company and, prior to his May 2016 disqualification, had been their sole director.
ASIC's Federal Court proceedings culminated, on 5 February 2018, in a range of declarations, injunctions and orders that were made against the various defendants. The substance of the declarations was that (i) Jeca, which operated under the name "Yes FS", had published misleading advertisements for "loans" and had provided financial services without a licence, (ii) each of the companies had provided misleading information about the "cash rebate" procedure and had provided self interested financial advice that was both inappropriate and not in the clients' best interests and, (iii) Mr Fuocco had been "knowingly concerned" in the contraventions of the three companies. The substance of the injunctions was to restrain the three companies from offering "cash payments" in connection with financial advice, entering into insurance contracts, or "switching" superannuation fund membership.
The combination of financial advice, superannuation "switching" and insurance contracts provided the essential aspect of the "cash rebate" procedure. The key to WRM's use of the procedure was the initial step of attracting clients who were interested in obtaining cash funds. This attraction was achieved (at least after about December 2015) through advertising on Jeca's "Yes FS" web site and other on line platforms. The precise content of this advertising changed over time, but its basic thrust promoted the ability of Yes FS to assist with debt management and, in particular, to provide a "cash flow" without applicants having to satisfy a "conventional credit check". Some of the content of Jeca's online advertising conveyed the impression that it provided loans, and inaccurately asserted that Yes FS had, or was affiliated with the holder of, an Australian Credit Licence. Contrary to that impression, at least some of the later versions of Jeca's advertising stated that it did not provide loans. Nevertheless, the consistent overall thrust of Jeca's advertising was to appeal to particular kinds of online search enquiries, including searches relating to "cash loans", "fast cash loans", "and "no credit check loans".
Fund seekers who responded to Jeca's advertising (by completing an online application form) were followed up by "Customer Service Operators" employed by either Jeca Holdings or YesFP. However, before contacting the fund seeker applicant, the Customer Service Operator would send the application to one of WRM's authorised representatives, and they would obtain insurance quotations for the applicant. Those quotations provided a basis for assessing both the likelihood, and the amount, of any potential "cash rebate". When a Customer Service Operator contacted a fund seeking applicant, their role was to inform them that the applicant's superannuation could be used to fund life and disability insurance, that commissions would be paid by insurers in relation to any new or replacement insurance, and that any commission paid by insurers could / would be at least partly "rebated" to provide cash to the applicant.[11] If that information encouraged an applicant to proceed, they would be sent an explanatory email, with copies of a range of documents, including a financial questionnaire, an authorisation and a form of agreement.
The contents of the explanatory email sent to interested enquirers[12] by YesFS changed somewhat over time. However, they typically had the following elements

[50]

The findings made in the Federal Court proceedings (see paragraphs 23 and 24) record that in June 2016 (ie., shortly after the period of Mr Sherwal's status as one of its authorised representatives), WRM commissioned an independent compliance review of its operations. Following that review, WRM briefly suspended its "cash rebate" activity and, to some extent, thereafter altered its practices. However, in mid August 2016, WRM submitted breach reports to ASIC. Those reports presumably related (having regard to the later findings in the Federal Court proceedings) to aspects of the "cash rebate" procedure.
In the meantime, as is apparent from the details summarised earlier in these reasons (see paragraph 1(c) above) Mr Sherwal had left WRM. Later in 2016, as the principal of Coober, he worked as an authorised representative of Investors Direct Financial Planning Pty Ltd. In early 2017 he completed his Advanced Diploma in Financial Planning, before joining Dover as an authorised representative:- see paragraphs 1(d) to 1(f) above.
There was no evidence about the nature and extent of Mr Sherwal's activities during the period of his association with Investors Direct Financial Planning Pty Ltd. Indeed, ASIC was agnostic about, and thus articulated no criticism of, Mr Sherwal's conduct in that period.
Nor was there specific evidence of the way in which Dover operated.[15] On the one hand, there was nothing to suggest that Dover actively promoted the use of a "cash rebate" procedure. On the other hand, it is clear, and uncontentious, that Mr Sherwal continued to use a "cash rebate" procedure at least during the bulk of the period of his activities during which Coober Australia was one of Dover's authorised representatives.[16]
In dealing with its clients Dover did use a standard form of "Fact Finder". It was apparently completed by an "adviser" and then submitted to, and declared to be accurate by, the client. Mr Sherwal used this "Fact Finder" template in his initial dealings with the three "Dover" clients identified by ASIC in its concerns notice, and in its subsequent decision reasons.
None of the three Fact Finders relating to the three "Dover period" clients that were the subject of ASIC's criticisms expressly stated that client was only seeking a limited scope of financial advice. Neither did they specifically refer to the need for either a loan or a cash rebate. However, they did indicate "short term" objectives that at least suggested a desire to be able to either "consolidate debt" or fund some anticipated expenditure. In relation to the former point, each of the Statements of Advice that Mr Sherwal provided to these three clients began by attributing to each client an agreed acknowledgement that the advice in fact only addressed "risk insurance and superannuation needs".[17] In relation to the second point, each of the three people had previously been clients of WRM, and had participated in its cash rebate procedure. Consistent with the use of that procedure, each Statement of Advice recommended either new or replacement insurance and, in disclosing the costs of that recommendation, stated the amount of the insurance commission that would be "rebated" to the client.
The evidence about both the extent of Mr Sherwal's use of the cash rebate procedure, and the mechanism for insurance commission and rebate payments, whilst he was at Dover was not entirely clear. In relation to the extent of the use of the cash rebate procedure, internal emails Mr Sherwal wrote on 3, 5 and 18 July 2017 and 14 August 2017 suggest that (i) the cash rebate procedure was something he regularly used, (ii) it was used to provide clients with short term funding for current debts, (iii) his practice was to rebate "at least 50% insurance commissions to all clients, (iv) at least in some instances, the client would only proceed with the insurance and superannuation advice if the rebate was paid, (v) his then usual advice fee was 10% of a client's superannuation fund balance, (vi) the advice fee was to ameliorate the risk (to Coober / Mr Sherwal) of commission "claw back" as a consequence of a client cancelling their insurance and, (vi) Mr Sherwal was well aware that the cash rebate could only be made from the commission paid by the insurer, rather than from the "adviser fee" paid by the superannuation trustee from the client's superannuation account.
In relation to the mechanism for rebate payments, there are some instances, where Dover "paraplanning" personnel conveyed to Mr Sherwal that insurance commission rebates should be paid to the client's superannuation fund trustee, rather than to the client. (Those instances appear to have prompted ASIC's apparent adoption of the same view:- see paragraph 9(b) above.) However, the accuracy of this proposition is doubtful. It had not been the practice in place at WRM - see paragraph 30 above. Furthermore, the fact of the subsequent approval (by Dover personnel) of Mr Sherwal's Statements of Advice indicates that Dover did not maintain the position that commission could not be rebated to clients. Indeed, other evidence shows that commission payments were made, as had been the case at WRM (see paragraph 30 above) and as one would inherently expect, to Dover, rather than to the superannuation fund trustee as the policy holder. In particular, an 18 October 2017 email from a member of Dover's "compliance team" records that it was Dover that received commission payments, including commission payments relating to insurance for Mr Sherwal's clients. It is unclear whether Dover was merely the initial recipient of the insurer's payments, and did not retain any of the commission for its own benefit. In that regard, the emails referred to in the preceding paragraph suggest that insurance commission was ultimately paid to Coober Australia Pty Ltd, and provided the source of funding for the rebates Coober made to clients. Whether that occurred because of a contractual arrangement between Dover and Coober, or reflected a merely informal understanding, there is no evidentiary basis for concluding that the superannuation trustee policy holder was entitled to any part of the insurance commission.

[51]

In his August 2020 response to ASIC's concerns notice Mr Sherwal had disclosed the fact of his role, during 1919, as a financial advisor at AFSL Group. Nevertheless, during the 15 December 2020 hearing ASIC did not articulate any criticism of Mr Sherwal's conduct during the (June 2019 to June 2020) period when he was employed by (or associated with) AFSL Group Pty Ltd. Nor did ASIC articulate any such criticism in either the contents of its 11 June 2021 decision reasons, or in the 2 December 2021 contention document it lodged in connection with the review proceedings.
However, in written submissions he provided in October and November 2021, and in apparent repetition of his previous assertions of inadequate training at WRM and Dover (see paragraph 6(g) above) Mr Sherwal complained that Mr Fuocco had continued to operate a financial services business. He also provided a witness statement, from a person who had been employed for a short period by AFSL Group and who described his role as that of a finan[18]al planner.18 That witness described his role at AFSL Group as involving informing clients of the available loan, its conditional nature (see paragraph 42 below) and obtaining "fact find" information about the particular client. His role had not included either the preparation, or the scrutiny, of formal Statements of Advice. They were prepared by others and sent direct to the clients. Despite his apparently limited involvement in (and perhaps knowledge of) the formal advice AFSL Group provided, the witness was extremely critical of AFSL Group's practices, both in relation to it financial advice procedures and the quality of that advice. He described AFSL Group's activities as directed at providing loans to clients who were "coerced" into rolling over their superannuation and taking out new insurance.
Several months later, in March 2022, ASIC provided a witness statement from another of AFSL Group's financial advisers. In that statement the witness recorded the fact of his engagement by Mr Fuocco, in about April 2019, as a financial adviser at State Advice (see paragraph 1(g) above) and his subsequent role (from June to August 2019, after State Advice stopped operating) as a financial adviser at AFSL Group. He stated that State Advice and AFSL Group had operated essentially the same type of business and had been managed by Mr Fuocco.
The precise nature of the business State Advice and AFSL Group operated was not explored in detail at the hearing, but the brief outline provided by ASIC's witness seems to have been uncontroversial. Both entities operated in association with Ansa Finance Pty Ltd, another company apparently managed by Mr Fuocco. Ansa Finance's online advertising solicited loan applicants.[19] However, Ansa's loans were only available to persons who took out insurance, funded from their superannuation accounts. Ansa's activities were therefore reminiscent of the activity of Yes FS (see paragraphs 25 & 27(e) above). Applicants who responded to Ansa's advertising were then contacted by AFSL Group agents or employees, who undertook the explanation and information gathering procedures that were necessary precursors to implementation of the contemplated superannuation "switch" and insurance transactions. Those procedures involved providing "risk" advice (ie. insurance advice) to the applicants, and completing "fact finder" types of questionnaires. In particular, the ASIC witness said that his role had been to "persuade people to take out insurance" and had not included the preparation of formal Statements of Advice. That aspect of AFSL Group's work was done by an external third party.
Mr Sherwal acknowledged that Ansa Finance and AFSL Group's activities were as outlined in the preceding paragraph. He was insistent that AFSL Group did not provide any cash rebates to clients. However, it is tolerably clear that the superannuation and insurance transaction that were an essential part of the "loan" transaction procedure promoted by Ansa Finance and AFSL Group paralleled the procedure (described earlier in these reasons) that had been used at WRM and, to some extent, at Dover in providing "cash rebates" to clients. Because of that parallel, it is possible that, under the AFSL Group practices, any insurance commissions that were payable (presumably to AFSL Group) contributed, in some unspecified way, to the funding of the loans provided by Ansa Finance. However, apart from an apparent denial by Mr Sherwal, that possibility was not explored in the evidence. Moreover, it does not seem likely to fully explain the AFSL Group / Ansa Finance business model - IF the Ansa loan range was as suggested by ASIC's witness (up to $20,000) and any insurance commission amounts were similar to those involved at WRM and Dover (ie., apparently less than $8,000 - see the Schedule to these reasons).
The precise nature and extent of Mr Sherwal's activities during the period of his association with Ansa Finance / AFSL Group was a matter of some contest. ASIC's witness, who variously described his role as that of "selling insurance" and as a "risk adviser" certainly involved providing financial advice, said Mr Sherwal had become a co-worker in about June 2019 and had performed essentially the same work, including providing advice to clients about their superannuation and insurance arrangements. For his part, Mr Sherwal said that, prior to his November 2019 appointment, he had not provided any personal financial advice. In particular, he denied having advised clients to take out insurance. He said he had only done "back office work" (lodging loan application forms) for Ansa Finance. This controversy is unnecessary to resolve, at least in the absence of specific criticism of Mr Sherwal's conduct in relation to any particular Ansa Finance / AFSL Group client. It is unnecessary because Mr Sherwal did concede the fact of his November 2019 appointment as an authorised representative of AFSL Group, the fact of his activity, in that capacity, as a financial adviser to Ansa's loan clients, and the nature of AFSL Group's activity in relation to both superannuation rollover advice and arranging superannuation funded insurance.
Against that background, but despite the absence of any specific criticism of Mr Sherwal's conduct in connection with AFSL Group Pty Ptd, during the course of the hearing ASIC put to Mr Sherwal that he had displayed "poor judgment", in continuing to associate with Mr Fuocco, in the context of the operation of a financial services business that used a "substantially similar business model" to that in place at WRM.
However, the significance of the proposition that AFSL Group Pty Ltd operated a "substantially similar" business model to WRM depends on an accurate understanding and evaluation of the asserted similarity. It also requires an accurate understanding of Mr Fuocco's role, the actual scope of his May 2018 ban, and the regularity of the status of Ansa Finance and AFSL Group. The evidence, in relation to each of those matters, was limited, but apparently to the following effect:-

[52]

(a) Substantial similarity:- Unlike the findings that were made in the WRM proceedings, there was no evidence to justify a conclusion that the advertising for the Ansa Finance / AFSL Group business was misleading. AFSL Group did not provide any "cash rebate". There was no evidence to elucidate what insurance commissions were generated, or as to how they were dealt with. Finally, and perhaps most importantly Statements of Advice were not prepared by AFSL's "advisers" such as Mr Sherwal (or the ASIC witness). They were all prepared by a third party, who provided them direct to clients. > > (b) The scope of Mr Fuocco's role:- ASIC's witness variously, and somewhat imprecisely, described Mr Fuocco as (i) acting like the manager of State Advice / AFSL Group, (ii) being in charge of the day to day running of Ansa Finance, (iii) doing the advertising for Ansa Finance and (iv) "representing" that company. Mr Sherwal, on the other hand, said Mr Fuocco told him that he was the marketing manager for Ansa Finance. > > (c) The scope of the May 2018 banning order:- The order restrained Mr Fuocco from carrying on a financial services business (and any business related to financial products or services). It also restrained him from providing financial product advice and from dealing in financial products. The order did not expressly ban Mr Fuocco from a role as an employee of any particular kind of business. > > (d) The status of Ansa Finance:- Ansa Finance had been incorporated in 2009. It changed its name in September 2018, shortly after all its issued shares were acquired by Mr Fuocco's parents. Since August 2018 it has had a succession of sole directors, none of whom had any substantiated association with Mr Fuocco. Ansa Finance was described by Mr Sherwal as being the holder of an Australian Credit Licence. > > (e) The status of AFSL Group:- AFSL Group had been incorporated in June 2002, and changed its name in October 2012. Prior to June 2019 its principal place of business had been in Ascot, Queensland. In June 2019 its principal place of business changed to Mr Fuocco's residence in Toorak, Victoria. At the same it had a, recently appointed, sole director (the nature of whose connection to Mr Fuocco was not established). Also in June 2019, all of the issued shares in AFSL Group had been acquired by a company of which Mr Fuocco's father was the sole director and shareholder. AFSL Group Pty Ltd held an AFSL licence as at November 2019 and continued to hold that licence until, at least, February 2022.

[53]

The appearance that advice to clients to "switch" superannuation funds, and to obtain new insurance, characterised AFSL's activities does present a degree of similarity with WRM's conduct, and that of Mr Sherwal at Dover. Furthermore, the criticisms of Ansa Finance and AFSL Group voiced by each of ASIC and Mr Sherwal's witnesses, highlight the risk of some financial services law contravention arising in the course of its activities. However, neither that apparent similarity, nor the apparent risk, suffice, given the imprecision of the evidence, and the matters noted in the preceding paragraph, to elevate ASIC's "poor judgment" criticism into an independent or additional basis for affirming the 11 June 2021 banning decision. That is so, notwithstanding ASIC's limited success in demonstrating (in written submissions provided after the hearing) that Mr Sherwal knew that Mr Fuocco could no longer "run any more business". ASIC's success on this score was limited because (i) Mr Sherwal placed that knowledge as having been imparted to him in about September 2017 (ie., more than a year after Mr Sherwal had left WRM), (ii) the relevant restraint order was not made against Mr Fuocco until February 2018, (iii) the precise content, and meaning, of the February 2018 order was never put to Mr Sherwal and, (iv) Mr Sherwal gave evidence that, before he joined AFSL Mr Fuooco assured him that he had "checked with ASIC" and that there was nothing to preclude Mr Sherwal taking up a role as a financial adviser at AFSL Group.
On the other hand, and despite a degree of imprecision, the evidence does point to a degree of similarity between elements of the "cash rebate" procedure at WRM, and the superannuation "switch" and new insurance transactions encouraged at AFSL Group. Proper regard to that appearance, and to the criticisms and risk referred to in the preceding paragraph, requires the conclusion that Mr Sherwal's period of association with Ansa Finance and AFSL Group does not provide an evidentiary basis for discounting or contradicting the assessment otherwise appropriate to draw from his earlier conduct whilst (in effect) an authorised representative of WRM and Dover.

[55]

As I indicated earlier, both ASIC's 29 April 2020 concerns notice and the 11 June 2021 decision reasons characterised the "cash rebate" scheme as unlawful:- see paragraphs 5, 8 (a) & 9(b) above. That characterisation was influenced partly by (i) the inaccurate proposition that insurance commission rebates should have been paid to the superannuation trustee policy holder (see paragraph 38 above) (ii) a description of WRM's practices as "non-compliant with the financial services laws" (per Mochinsky J in ASIC v Wealth & Risk Management Pty Ltd [2017] FCA 477 at [148]) and, (iii) the view that the practical effect of the scheme was to make, albeit "indirectly", unauthorised payments from a superannuation fund. This characterisation of the scheme as unlawful, together with the perception that it had, to Mr Sherwal's knowledge, been misleadingly marketed (at least by WRM) to financially disadvantaged people seeking loan funding, formed the principal basis for ASIC's concern that Mr Sherwal was not a fit and proper person to provide financial services.
However, the accurate characterisation of activities involved in clients receiving a "rebate" requires a degree of discrimination. Careful regard to the circumstances and reasoning involved in ASIC v Wealth & Risk Management Pty Ltd [2017] FCA 477 (and the subsequent decision in ASIC v Wealth & Risk Management Pty Ltd (No 2) [2018] FCA 59) show that the non-compliance to which Mochinsky J alluded related to (i) the misleading promotion of the "cash rebate" scheme to people whose primary objective was to obtain loan funds (see paragraphs 24 & 25 above) and, (ii) to the inappropriate advice WRM gave to influence clients to participate in the scheme. Conversely, nothing in Mochinsky J's reasons in either of the two WRM decisions supports the view that the mere fact of providing a partial "rebate" of commission that an insurer paid (in connection with an insurance policy funded by payment from a client's superannuation benefit account) to the client's insurance adviser was in any sense unlawful or improper.
Notwithstanding the doubtful accuracy of the proposition that the provision of a "cash rebate" was necessarily unlawful, it was a proposition to which ASIC adhered, perhaps somewhat ambiguously, in its 2 December 2021 contention document. In order to resolve any ambiguity I required ASIC to provide a specific articulation of the basis for the proposition. Subsequently, at the outset of the review hearing, ASIC explicitly disavowed any contention that the mere provision of a cash rebate (funded from commission paid by an insurer to a client's financial services provider) was in any sense unlawful.

[63]

Those details indicate that the effect of Mr Sherwal's June 2017 proposed advice to K_E was to reduce the level of his life and disability insurance, with a resultant significant reduction in the total premium cost. Despite that appearance the evidence shows that Mr Sherwal's proposed Statement of Advice to K_E, based on the superannuation "switch" and change of insurer, was a matter of some controversy within Dover.
ASIC's basic criticism of Mr Sherwal's conduct in relation to K_E is illustrated by the content of email exchanges (in August and September 2017) between Mr Sherwal and various Dover personnel in relation to his proposed "switch" advice to K_E. This exchange highlighted Dover's contemporaneous concerns that Mr Sherwal had recommended a "switch" from, rather than an alteration of, existing insurance, in circumstances where (i) there was no apparent insurance cover advantage in changing insurers, (ii) there was no material premium saving in moving to a new insurer, (iii) the proposed new insurance would involve "stepped" premiums and was of uncertain long term benefit to the client, (iii) the proposed level of life insurance cover was excessive and, (v) the proposed $6,000 advice fee was excessive (because the work involved should only have taken about an hour).
In the light of those criticisms, Dover had suggested that Mr Sherwal prepare a new Statement of Advice. Despite apparently acknowledging the force of Dover's criticism of the cost of the proposed new insurance, Mr Sherwal adhered to his preference that K_E "switch" insurers, and asserted that there was some advantage to the client in the scope of cover offered by the proposed new insurer. But Mr Sherwal's position was emphatically rejected. In late September 2017 Terry McMaster (Dover's principal) emphatically rejected the proposal that K_E should "switch" insurer. His response to Mr Sherwal was "no switches permitted - non-negotiable".
Following that emphatic rejection, Mr Sherwal did not proceed either to issue the June 2017 Statement of Advice, or to prepare a new advice, consistent with Dover's instruction. Indeed, within a few weeks of Dover's late September 2017 instruction, Mr Sherwal ended his relationship with Dover:- see paragraph 1(f) above.
The position taken by Mr Mc Master in relation to Mr Sherwal's proposed advice to K_E followed earlier emails that McMaster had circulated to Dover personnel, in which he had expressed his concern about the advice criticisms ASIC had expressed in a recently released report on life insurance. In those earlier emails Mc Master had encouraged Dover advisers to read the ASIC report, described its contents as "a sobering read" and expressed the hope that "with all our efforts Dover is not one of the offending" financial service providers. Both those earlier emails, and Dover's specific criticism of Mr Sherwal's proposed advice to K_E, tend to undermine, and indeed establish as insubstantial, his complaint about inadequate training and supervision during the time of his involvement with Dover as an "authorised representative":- see paragraphs 6(f) & 6(g) above.
Because the June 2017 Statement of Advice was not actually issued ASIC made no specific assertion that Mr Sherwal had contravened a financial services law in relation to the contents of the proposed advice. In its April 2020 notice of concerns ASIC had characterised Mr Sherwal's conduct in relation to K_E as an illustration of a continuing attempt to "exploit" "financially disadvantaged and desperate people". However, that characterisation was not repeated in the June 2021 decision reasons. Indeed, the ASIC delegate accepted that, in relation to his "cash rebate" clients generally, Mr Sherwal had genuinely believed that, by facilitating the client's access to a "cash" payment, he was giving priority to their best interests. However the delegate considered that such a belief lacked objective foundation, and itself contributed, when regard was had to advice Mr Sherwal had given to other clients, to a conclusion that Mr Sherwal lacked sufficient professionalism and judgment to justify satisfaction that he was a fit and proper person to provide financial services. This was the substantial basis on which, at the review hearing, ASIC ultimately pressed reliance on Mr Sherwal's proposed June 2017 advice to K_E. I will proceed on substantially the same basis - namely that (i) the Dover's contemporaneously expressed criticisms of Mr Sherwal's proposed advice to K_E tend to provide an objective basis for concluding that he failed to act objectively in client's best interests in relation to the "switch" advice that he gave as a part of their participation in a "cash rebate" transaction, (ii) that objective appearance lends weight to the proposition, apparently conceded by Mr Sherwal (see paragraphs 6(j) & 7(c) above) that he had indeed failed to act in the best interests of his clients.

[68]

On one view, the fact that each Statement of Advice recommended a substantial increase in each client's life and cover might be viewed as potentially consistent with pursuit of each client's best interests. Perhaps that might have been most forcefully argued in the case of M-S, a client who had no income protection insurance. But a number of considerations caution against a sanguine acceptance of that view. First, the characteristic that each Statement of Advice recommended a change of insurers, rather than an increase or variation of existing insurance, when viewed against the background knowledge of WRM's "cash rebate" procedures, cautions against uncritical acceptance of that possibility. Second, in the case of A_S, the $1.5m life and TPD insurance amount was sought to be justified in the Statement of Advice after an unexplained amount of $468,000 was added to the "capital required" to replace (in the event of total disability) the client's reported income. That unexplained amount in itself gives rise to some doubt about the quality of the advice, and that doubt is not resolved by observing that, the insurance amounts involved in Mr Sherwal's later Statements of Advice to the same client, are not readily reconcilable with his September 2015 advice:- see Schedule 1 rows 1, 2 & 23, 24, columns W, Y and H, J, W, Y. There is a similar dissonance between the insurance amounts relating to the client M_S:- see Schedule 1 rows 3, 4 & 25, columns W, Y and H, J, W, Y. There is yet another such dissonance in the recommended insurance amounts in the case of K_E:- see Schedule 1 rows 5 & 18, columns W, Y and H, J, W, Y.
A third consideration is that when regard is had to (i) each client's modest superannuation balance, (ii) the projected significant decline in that balance, as a result of the advice and, (iii) the fact that the premium cost represented such a high proportion of the amount of each client's employer funded superannuation guarantee contributions, one would have expected that each Statement of Advice would / should have included reference to the desirability of the client making additional superannuation contributions, to offset the impact of the projected costs of the Advice. But there was no such reference in the Statements of Advice given to A_S and M_S.
In the absence of specific focus on the content and parameters of the advice provided to the three clients identified in paragraph 67 above, it would not be appropriate to regard the considerations to which I have referred as adding to the substance of the criticisms that ASIC advanced in both the June 2021 decision reasons and in its submissions in the review proceedings. Conversely, however, those considerations do not provide an evidentiary basis for concluding that ASIC's specific criticisms, to the extent that they are otherwise substantiated, should be regarded an instances of merely aberrant departures by Mr Sherwal from the standards of conduct otherwise required of a person authorised to provide financial services.

[70]

Earlier in these reasons I set out the typical process by which WRM attracted its clients and, in practical terms, required them to obtain financial advice before they could take advantage of its "cash rebate" procedure:- see paragraphs 25 to 29 above. An incident of the WRM process was that Mr Sherwal became involved with his allocated advice client from a very early stage of their interaction with WRM / Yes FS / Yes FP, and was well aware of both WRM's business model and the financial circumstances or each of his individual clients.
It is only necessary to supplement those previously stated details with additional information about the typical process by which WRM's Statements of Advice were prepared, and their typical contents. The process of preparation obviously started with the financial planner's review of the client's financial questionnaire, and a subsequent follow up discussion with the client:- see paragraphs 26 and 29 above. Typically, that follow up discussion would involve confirming and / or supplementing the client's questionnaire responses, disclosure of the proposed advice fee, and then obtaining the client's formal authorisation to proceed with the preparation of a formal statement of advice. Typically, the form of authorisation in use at WRM included a heading where the client had the option to indicate that the scope of the financial advice they were seeking was limited to specified topics.
Once a client signed their authorisation form, Mr Sherwal would submit a "para planning request". This was done using a standard, three page WRM template. The template had various options, from which the requesting financial planner had to nominate what was required for the particular client. These options related to (i) the scope of the advice sought was "full" or limited to superannuation and insurance, (ii) the extent of detail required to be provided and, (iii) the fee basis (whether timed, set or asset based). The template also required the requesting financial planner to (i) confirm that they had properly identified each client's objectives, (ii) provide the client's personal and financial particulars and, (iii) outline the adviser's proposed financial product recommendations.
Depending upon the scope and detail indicated in the para planning request, the formal Statement of Advice provided to each client could be a lengthy document, comprising in the vicinity of 50 pages.[21] Typically, each formal Statement of Advice had the features listed earlier in these reasons:- see paragraphs 29 (a) to 29(h) above. Each Statement of Advice declared itself to have been prepared by Mr Sherwal (in the case of his clients) and was sent by him with a covering letter. Each Statement of Advice concluded with a form of acknowledgement and authority that was to be completed by each client, and countersigned by Mr Sherwal.
ASIC's specific criticisms of Mr Sherwal in relation to the period of his involvement with WRM were limited to three clients. Those three clients each appear to have (i) completed a financial questionnaire, (ii) discussed their financial circumstances with Mr Sherwal and, (iii) been provided with a formal Statement of Advice. In each case, despite the fact that none of their completed authorisation forms indicated any such limitation, each of their Statements of Advice specifically excluded advice on debt management, retirement planning and estate planning. And declared itself to be limited to superannuation, personal insurance and investment planning. Each Statement of Advice then set out the client's asserted goals, the requested focus of their financial advice, and a summary of that advice. The primary stated goal was retirement at age 65, sometimes supplemented by a desire to cover debts or own property. Despite any variation in the stated goals, the requested focus of the Statement of Advice was limited to insurance, tax minimisation of insurance costs and "review" of superannuation arrangements. Correspondingly, the advice summary was limited to superannuation rollover, and superannuation funded life, disability and income protection insurance. Apart from some discussion of the investment practices of the recommended superannuation fund, the Statement of Advice did not extend to contain any additional consideration of "investment planning".
ASIC's criticisms of the Mr Sherwal's advice to the client M_R were as follows:-

[73]

ASIC's criticism of Mr Sherwal's failure to address M_R's financial objectives, particularly in relation to his "short term" goal of obtaining a small loan, is based on a reading of the responses recorded in the questionnaire he provided to Mr Sherwal. However, ASIC's approach is somewhat problematic. This is because the questionnaire has been annotated, presumably during and as a result of, further discussions between M_R and Mr Sherwal. The thrust of those annotations is to characterise M_R's advice objectives as directed towards general advice on superannuation, life disability and income protection insurance, financial stability and eventual comfortable retirement. Those annotations, to the extent that they modified M_R's originally stated objectives, might be regarded as revisions influenced by disclosure of WRM's business model and the limited scope of the services it was willing to provide. But that influence would not necessarily dictate a conclusion that the original content of the questionnaire, rather than its annotated version or the formal Statement of Advice, reflected M_R's actual objectives in relation to the financial advice he authorised Mr Sherwal to provide.
The reservation expressed in the previous paragraph is appropriate, but its significance is limited to M_R's short term objectives. Even in its annotated form, M_R's longer term goals were to achieve financial security and to be able to retire comfortably at age 65. The latter is the stated objective in his Statement of Advice and it is that objective, and the stated focus of his requested advice, that direct attention to the contents of the advice he was given.
As the summary Table (see paragraph 79 above) reveals, M_R was a 54 year old divorced male, with no dependants and a very modest income. Mr Sherwal's November 2015 Statement of Advice recommended M_R roll his four existing superannuation accounts into a single fund, and then take out superannuation funded insurance. Mr Sherwal's advice that M_R should consolidate his existing superannuation accounts is likely to have been sound. The same cannot be said of his advice in relation to the insurance he recommended to M_R.
Even though M_R had no dependants, the Statement of Advice recommended life insurance cover of $450,000, on the basis that such an amount would enable his family to "maintain a lifestyle and will be protected from financial hardship". That recommendation was then stated to be based on a "needs analysis" which recorded "other expenses" amounts of $463,294 as a matter relevant to assessment of the desirable amount of M_R's life insurance. That other expense amount was unexplained and, since M_R had no dependants, was not readily amenable to any satisfactory explanation.
The permanent disability insurance cover recommended for M_R was a lump sum amount of $900,000. That amount was also purportedly supported by a "needs analysis" table, which included an, unexplained, "other expenses" amount of $913,294. No rational explanation for such an amount is readily apparent. Furthermore, it can readily be discerned that the $900,000 amount was equivalent to approximately 23 years of M_R's reported pre tax annual income. It is, perhaps, not inconceivable that a 54 year old man, on such a modest annual income, might choose to fund a disability insurance policy with such a benefit, but it is doubtful that such a person, if fully informed and properly advised, would choose to do so.
The doubt suggested in the previous paragraph is underscored by a proper appreciation of the impact of the insurance premiums on M_R's longer term objectives. In that context it is relevant to have regard to the comparison of M_R's existing and projected cash flow that was included in the Statement of Advice. Both of the cash flows were based on the assumption that all the insurance premiums would be wholly funded from the client's superannuation contributions. Although careful reading of the Statement of Advice would have revealed to a discriminating reader that the client's existing insurance premiums were level, and that the recommended insurance involved "stepped" premiums, the cash flow analysis failed to take that difference into account. In particular, it failed to take into account, and the Statement of Advice otherwise failed to advert specifically to, the fact that the "stepped" premiums for the recommended insurance would, within five years, approximate $7,000 and represent almost 190% of the client's existing superannuation guarantee contributions. That readily foreseeable consequence of Mr Sherwal's insurance advice, provides good reason to conclude that the Statement of Advice was motivated by interests other than those of M_R and was both careless and formulaic. That characterisation is contributed to by the reference to "family" hardship in support of the life insurance recommendation (see paragraph 83 above). It is also illustrated by the appearance of inconsistent statements in two consecutive paragraphs of the Statement. The two inconsistent statements were to the effect that the recommended insurance (i) was "personally owned" and thus the premiums, funded from after tax income, would affect the client's cash flow and, (ii) was owned by the client's superannuation fund trustee, would be funded from superannuation contributions and would not affect the client's cash flow.
ASIC's criticism that Mr Sherwal's advice was flawed because it resulted in a significant diminution of M_R's superannuation account balance somewhat abbreviates the required analysis. As the summary Table shows, M_R had limited existing insurance cover and, in particular, he had no income protection insurance. In addition, he was apparently concerned to obtain financial advice to achieve his goals of financial stability and comfortable retirement. If the advice he was given appropriately addressed those goals, the fact that they were funded from his superannuation account, and reduced both its current and projected value, would not necessarily contradict characterisation of financial advice as being in his "best interests". But in M_R's case, the advice Mr Sherwal gave, particularly in relation to M_R's insurance cover, was seriously flawed, and clearly not in M_R's best interests.
ASIC's criticisms of Mr Sherwal's advice to the client P_J were as follows:-

[76]

As the summary Table reveals, P-J was a 32 year old single male. He had no dependants and a modest income. Mr Sherwal's November 2015 Statement of Advice recommended P_J roll his two existing managed superannuation accounts into a single new fund, with a spread of investments in indexed funds. Although this proposal would attract an exit fee from the client's existing fund, it was also projected to increase P_J's final retirement balance by about $900,000. That somewhat remarkable result was implicitly attributed to the greater number of investment option available in the new fund. In a later passage the Statement of Advice professed to show the "total projected balance" were P_J to have consolidated his superannuation balance into either of his existing funds, or into the proposed new fund. However, the Statement did not in fact display any such projection comparison.
ASIC's principal criticism of Mr Sherwal's superannuation "switch" advice to P_J seems to have been that it did not address the potential significance of changing from "managed" to "indexed" investments. However, the significance of that criticism was neither articulated in ASIC's decision reasons, nor explored at the review hearing. In the absence of meaningful articulation, it is not appropriate to recognise that criticism as a substantial basis for an adverse finding against Mr Sherwal. However, the Statement of Advice, by asserting a projection comparison that it never in fact made, clearly failed to provide advice and information that was appropriate to P_J and that was necessary for him to make an informed decision about Mr Sherwal's replacement product advice.
ASIC's criticism that Mr Sherwal's Statement of Advice did not address P_J's particular objectives is problematic, for essentially the same reasons as those I set out earlier, in relation to M_R:- see paragraphs 80 & 81 above. ASIC's criticism that the reduction in P_J's superannuation account balance is similarly problematic:- see paragraph 86 above. The annotated version of P_J's questionnaire is amenable to the assessment that his primary reasons for seeking formal advice were to obtain appropriate insurance advice, and to obtain that advice in a context where one of his financial goals was to save money to accumulate a deposit for a house. However, those considerations, and that permissible assessment of the questionnaire, focus attention on the insurance aspect of Mr Sherwal's advice.
One aspect of ASIC's criticism of the insurance advice given to P_J was that it mis-stated the cost of his existing insurance, and thus significantly understated the impact of the recommended new insurance. The details in Schedule 1 indicate that the Statement of Advice recorded an amount of $4,095 as the total premium cost of P_J's existing insurance, and $3,259 as the total cost of the new insurance:- see Schedule 1 row 10, columns N & AB. On the other hand, the actual premium cost recorded in the para planning request for the statement of advice was only $491:- see Schedule 1, row 10, column O. This discrepancy, otherwise unexplained, casts doubt on the accuracy and reliability of the advice. One possible view is that the Statement of Advice was the more informed and accurate amount. However, that possibility is apparently contradicted by the matters discussed in paragraph below. The insurance quotation that ASIC subsequently obtained points to the likelihood that the Statement of Advice did indeed overstate the cost of the existing insurance.
However, the more significant aspect of ASIC's criticisms concerns the insured benefit amounts. In that regard, the $500,000 life insurance benefit was somewhat arbitrarily nominated in the Statement of Advice, as potential protection to P_J's family. However, such an amount, with a level premium structure, should not necessarily be seen as inappropriate insurance for a young single male.
A different assessment applies to the disability insurance benefit of $1.2m recommended in the Statement of Advice. In articulating its criticism of that recommendation ASIC pointed to the effect of the recommendations for insurance to provide both a lump sum disability benefit and income protection. ASIC pointed out that Mr Sherwal had based his insurance cover recommendations on a "needs analysis" where P_J's recommended income protection insurance would, in the event of disability, provide 75% of his current income. On that basis, a lump sum disability insurance benefit would have to be an amount capable of providing an annual sum equivalent to 25% of P_J's current income (ie., the required benefit amount would approximate $10,750 times "n" years). ASIC also pointed out that the required capital sum Mr Sherwal had nominated in his "needs analysis" was $542,079 - which reflected an "n" value of 50 years and, because it exceeded the balance of the client's anticipated working life by 17 years, was obviously excessive. (In reality the implicit "n" value would be even greater. This is so for two reasons. First of all, the recommended income protection benefit amount actually approximated 80% of P_J's annual income. (It follows that the disability insurance benefit was only required to be $8,600 times "n" years). Secondly, allowance should properly be made for both after tax income from, and capital growth of, any lump sum insurance benefit. Furthermore, Mr Sherwal's "needs" analysis included a further sum of $570,000 for the contingencies of relocation and home modification, in the event of P_J's incapacity. There was no reasoning in the Statement of Advice to support the selection of this amount for those contingencies.
The matters discussed in the preceding paragraph suggest that Mr Sherwal's insurance advice to P_J resulted in significant over insurance, and avoidable additional cost, at least in relation to his lump sum insurance benefit. In that context, ASIC proffered evidence suggesting that P_J could have obtained combined life and disability insurance cover from P_J's previous insurer, for $1,025 - about half of the premium cost of Mr Sherwal's insurance recommendation. That evidence encourages acceptance of the proposition that Mr Sherwal's insurance recommendation to P_J (at least in relation to the disability insurance cover) was based on arbitrary and inadequately reasoned decisions, objectively inappropriate, and not in P_J's best interests.
In his oral evidence at the review hearing Mr Sherwal sought to dismiss the premium cost evidence referred to in the preceding paragraph. He did so by suggesting that there was a material difference (implicitly in relation to both premium levels and claims practices) between insurance effected by an industry superannuation fund and insurance effected by a retail fund. (This was in the context where the client was being advised to change to a fund of the latter kind.) There are three problems with this attempted explanation. First, of all, no such explanation was contained in the client's Statement of Advice. Second, it is an inherently implausible explanation, which I would not accept without specific evidentiary substantiation. Third, even if accepted, it would provide no answer to the apparently excessive sums insured. Mr Sherwal attempted to answer ASIC's criticism of the sum insured by reference to the client's age, and the contingency of disability at his current age. That attempt was equally futile. Disability at the client's current age was contingency necessarily addressed in the "needs analysis" in the Statement of Advice - and the proffered "needs analysis" was demonstrably deficient - for the reasons set out above.
ASIC's criticisms of Mr Sherwal's advice to the client W_L were as follows:-

[79]

The summary Table indicates that W_L was a 37 year old single female. She had a modest income, and a very small superannuation balance.
ASIC's criticism that Mr Sherwal's Statement of Advice did not address W_L's particular objectives is problematic, for essentially the same reasons as those I set out earlier, in relation to M_R:- see paragraphs 80 & 81 above. ASIC's criticism that the reduction in W_L's superannuation account balance is similarly problematic:- see paragraph 86 above. The annotated version of W_L's questionnaire is amenable to the assessment that her primary reasons for seeking formal advice were to obtain appropriate financial advice, particularly in relation to income protection and her long term goal of saving and eventually financing the purchase of a house. That permissible assessment of the questionnaire, focuses attention on two other aspects of the Statement of Advice. The first involves ASIC's criticism that Mr Sherwal did not address W_L's family situation. The second involves the insurance aspect of Mr Sherwal's advice to W_L.
It is difficult to form a clear understanding of the family situation W_L's conveyed to Mr Sherwal. The typewritten version of her questionnaire does include four named individuals as desirable beneficiaries of her estate (ie., of any life insurance benefit), but there is nothing to indicate either their ages or their relationship (If any) to W_L. Similarly, no children are listed under the heading "Dependants" in the typewritten version. Consistent with that absence of detail, in the annotated version of the questionnaire the "Dependants" heading appears to have been struck through, and the words "No financially dependent kids" have been written next to it. The para planning request states that W_L has no dependent children. Finally, although the "fixed" expenses listed in the questionnaire include a monthly "child support" payment of $400, the expense total reflected in the formal Statement of Advice appears to have eliminated that payment.[22]
The information summarised in the preceding paragraph at least suggests that there was specific discussion between Mr Sherwal and W_L about whether she had any dependant children. It also tends to suggest that the "child support" expense indicated in the questionnaire was noted, questioned and, in response to the questioning, eliminated. Those suggestions are, admittedly, not the only possible explanation for the differing details apparent in the questionnaire responses and the Statement of Advice. But in the absence of specific evidence from W_L, or concessions from Mr Sherwal, there is no adequate evidentiary foundation for upholding this aspect of ASIC's criticism of Mr Sherwal.
On the other hand, the insurance aspect of Mr Sherwal's advice to W_L merit scrutiny, and criticism. Mr Sherwal's recommended life insurance benefit was $400,000. That recommendation was supported in the Statement of Advice by a formulaic narrative about the utility of life insurance in protecting "yourself and your family from significant financial hardship" - a narrative that was apparently irrelevant to a single woman with no dependants. Furthermore, the "needs analysis" set out in the Statement of Advice as a proffered basis for the selection of the life insurance benefit amount included (i) an apparent allowance of $672,000 for "ongoing income requirement for family life" and, (ii) a $415,000 amount described as "capital for adequate cover". None of the reasoning or calculations (if any) that underly these amounts is apparent in the Statement of Advice. Indeed the "needs analysis" table displays a mere arithmetical process, rather than a rational one, for arriving at desirable life insurance benefit amount.
Given M_L's desire (apparent in her questionnaire) to leave the benefit of her life insurance to four named individuals, it is not inconceivable that she may have been more than content to pursue the $400,000 life insurance cover recommended by Mr Sherwal. But there is nothing in the available evidence to demonstrate that W_L ever articulated such a view. On the contrary, Mr Sherwal appears to have recommended the $400,000 life insurance cover on the basis of an assessment of M_L's "needs". That "needs" assessment, and the advice, as presented in the Statement of Advice, was seriously deficient. That was especially the case when regard is had to W_L's existing life insurance cover, its premium cost, and to W_L's limited superannuation balance. When those matters are taken into account, Mr Sherwal's life insurance advice was not in W-L's best interests and was not appropriate to her circumstances.
W_L's questionnaire response indicated that she had existing income protection insurance, with a potential monthly benefit of about $1,000. She paid the premium from her own (ie. non-superannuation) resources. That premium amount was reported in the questionnaire as approximately $1,000, and that cost was reflected in the statement of annual expenses included in the Statement of Advice. Despite that available information, the Statement of Advice made no reference to W_L's existing income protection insurance. It did, however, recommend superannuation funded income protection insurance - as indicated in the earlier Table:- see paragraph 98 above. The result of this combination of events appears to have been that W_L was given no advice about the desirability of terminating her existing, self funded income protection insurance, and about the potential cost saving involved - notwithstanding the potential relevance of that kind of advice, given her longer term financial goals.
A further aspect of ASIC's criticism of Mr Sherwal's advice related to the actual premium cost of the recommended (superannuation funded) insurance. This criticism was based on an indicative quotation that ASIC obtained from W_L's existing (ie., pre SoA) insurer in August 2016. The effect of that quotation is apparent in the following Table, which compares Mr Sherwal's SoA advice with the indicative quotation that ASIC received_._

[80]

The information set out in the Table does not take into account the income protection insurance policy that W_L held in her own right at the time of her Statement of Advice. The information does indicate that the superannuation funded insurance premium, even if the insurance benefit amounts has been appropriate, could / should have been $1,403 less than those advised.
It may be observed that the indicated potential premium saving is of the same order as the ($1,440) cash rebate W_L received. It could be argued, therefore, that W_L paid an advice fee approximating $3,000, and incurred an (unnecessary) additional ongoing annual premium cost of $1,403, as the cost of receiving an immediate cash payment of $1,404. Such an outcome is hardly reasonable, from an objective view point, and re-inforces the conclusion that Mr Sherwal's advice to W_L was not in her best interests.
ASIC was also critical of Mr Sherwal's advice for M_L to "switch" her superannuation to a new fund. Again ASIC's criticism appears to be justified. The recommendation is based on an obliquely expressed comparison of what the Statement of Advice refers to as "present" and "future" value of M_L's superannuation account under both the "existing" and "alternative" platforms. The comparison necessarily makes unspecified, but presumably consistent, assumptions about the level of M_L's ongoing superannuation assumptions.[23] Having made those assumptions the comparison indicates that the present value and the future value of W_L's projected fund value at retirement age, under the "existing" platform exceed the corresponding values under the "alternative" platform. (The difference in the projected future value is $48,266.) Notwithstanding that comparison, the Statement of Advice then proceeds to "explain" the advantages attaching to the "alternative" platform. They are (i) reduced fees (the effect on the projected future value is stated as $599), (ii) the acceptability of UK pension transfers, (iii) online transaction functionality and, (iii) "auto rebalancing". The first of these advantages is both trivial and misleading, when regard is had to the absolute difference in the projected future values. The other "advantages" are of doubtful meaning and relevance. In the absence of explanation and objective materiality, they cannot be characterised as providing any justification for Mr Sherwal's advice. Therefore, in his respect also, the Statement of Advice was not in M_L's best interests and clearly failed to comply with the "additional advice" obligation in CorpAct 947D.

[82]

Earlier in these reasons I referred to the procedures apparently in place at Dover, particularly the use of a Fact Finder, the issue of "limited" Statements of Advice, and Mr Sherwal's typical practice in relation to the use of the "cash rebate" procedures:- see paragraphs 34 to 38 above.
The formal advice process at Dover obviously started with the client's Fact Finder. This was a standard nine page document that each client completed online, most likely after some initial discussion with their Dover financial adviser. The Fact Finder template required the client to provide their personal details, their objectives, details of their finances, including superannuation and insurance and to respond to a brief "investment profile" questionnaire. The Fact Finder template concluded with a form of acknowledgement about the accuracy of its contents, and consent to its use by Dover "for the purposes of providing financial and investment advice".
It is evident from the internal emails referred to earlier (see paragraph 37 above) that after the client completed their Fact Finder, Dover's procedures involved the financial adviser to submit a para planning request. Dover had a standard 11 page [24]quest form.24 The form required the client's details, information about their risk profile and objectives and options, from which the requesting financial planner had to select, about the scope of the advice sought. Depending upon the scope of the advice, the form then required the financial planner to set out their proposed recommendations. Where they related to superannuation and insurance, the adviser was required to detail their recommendations, and substantiate them with their reasons. After the para planning request was submitted, there was often further discussion between the financial adviser and the para planner, before the formal statement of advice was completed, and provided to the adviser. (Despite the para planning input, each (presently relevant) Statement of Advice declared itself to have been prepared by Mr Sherwal.
The available examples of the Statements of Advice provided to Mr Sherwal's clients at Dover are only about 10 pages long and are much shorter, and less detailed, than the typical (50 page) WRM statements of advice. That shorter length of the Dover Statements of Advice was somewhat misleading. This was because the typical Statement was obviously intended to be read online. It had embedded hyperlinks that referred to other information, including a range of superannuation and insurance related products and topics.[25] Although the Dover Statements did not contain the specific "best interest" declarations in the WRM Statements (see paragraphs 29(f) & 29(g) above) each statement did declare that it had been reviewed by a named firm of legal practitioners, who had confirmed that the advice was appropriate for the client a[26] in their best interest.26 Later parts of the Statement set out the particular superannuation and insurance recommendations, with reasons for each recommendation. Those reasons tended to be rather briefly expressed, and in the case of the superannuation recommendations did not include (in contrast to the practice at WRM) any projection of final retirement balances. However, they drew attention to the fact that superannuation funded insurance premiums would reduce the client's account balance. Typically, they drew attention to the possibility of making additional contributions, and (unlike the WRM Statements) noted the current concessional contribution limits. Sometimes, but not consistently, they described the making of additional contributions as "imperative ... to at least negate the cost of the insurance premiums"", and quantified the client's potentially permissible concessional contribution limit. Each Statement of Advice concluded with a form of acknowledgement and authority that was to be completed by the client.
ASIC's specific criticisms of Mr Sherwal in relation to the period of his involvement with Dover were also limited to three clients. I have identified them in Schedule 1 as A_S, M_S and P_M.
As can be seen from Schedule 1, each of the three clients had previously been a WRM client and had participated in the cash rebate procedure:- see Schedule 1 columns A & R, rows 1 to 4, 5.1 & 23 to 26. An aspect of ASIC's criticism of Mr Sherwal was that he had continued to engage in a "cash rebate" procedure during his time at Dover. However, the "cash rebate" procedure was not itself unlawful, as ASIC ultimately and expressly conceded:- see paragraphs 49 to 51 above. Furthermore, as I have previously noted, in the statement of reasons for the 11 June 2021 decision the ASIC delegate had accepted that Mr Sherwal had subjectively, but mistakenly, had believed that his clients' participation in the cash rebate procedure had been in their best interests:- see paragraph 66 above. It follows that criticism of Mr Sherwal's conduct in relation to these clients should be focussed on the content of his advice, and the considerations influencing it, rather than on the mere fact that he provided cash rebates to clients, during his time at Dover.
ASIC's criticisms of the Mr Sherwal's advice to the client A_S were as follows:-

[85]

The "pre" and "post" levels of tpd insurance cover reflected in the preceding Table, though consistent with the contents of the June 2017 Statement of Advice, and apparently agreed between the parties, may not be entirely accurate. Scrutiny of Schedule 1, and the September 2015 Statement of Advice (see Schedule 1 row 2) reveals that the insurance that A_S had in place in September 2015, had remained in place as at September 2017, despite the cancellation recommendation that Mr Sherwal had made in his 2015 Statement of Advice. It also appears that Mr Sherwal's 2015 insurance recommendation had included a $1.5m TPD benefit coverage. A final curiosity about the accuracy of the information in the Table relates to the total insurance premium cost. It is apparent from Schedule 1 that the total premium cost associated with Mr Sherwal's 2015 advice (ie, not including the pre-existing insurance cost) was $7,215:- see Schedule 1 column AB. This contrasts with the total premium cost of the then existing insurance as at September 2017 - $5,285:- see Schedule 1 row 24 column N.
ASIC's criticism that Mr Sherwal's Statement of Advice did not address A-S's asserted objective in relation to debt consolidation is factually correct, but of questionable significance. A_S's Fact Finder indicates that, whilst she had a combination of credit card debts totalling $28,000, and other bank debts totalling $14,000, those were her only liabilities, and she had a joint interest in an $800,000 asset that she estimated would be realisable within the next two to three years. Her "Fact Finder" objectives involved a combination of debt consolidation, investment for retirement and re-assessment of risk insurance. (The latter objective being prompted by concern at certain exclusions contained in her existing cover.) That combination of objectives necessarily involvement some element of prioritisation. Consistent with that prioritisation, A_S's Statement of Advice was expressly limited to risk insurance and superannuation, and A_S's signed the statement, acknowledging her understanding of its contents, on 12 July 2017.
ASIC's criticism that Mr Sherwal's advice involved an inappropriate reduction in A-S's superannuation account balance is also problematic. Whilst the fact and extent of that reduction are apparent from the Table set out above, the information in A_S's Fact Finder is amenable to the assessment that a primary reason for seeking formal advice was to obtain financial advice relating to the adequacy of her existing disability and income protection insurance. (The major part of her then existing life and tpd insurance had apparently been arranged in 2015, when she was a client of Mr Sherwal at WRM. Another part of her existing insurance was already in place in 2015, and had apparently continued on after Mr Sherwal's 2015 advice. The premiums for both parts of A_S's insurance were funded from her superannuation account.) Furthermore, the Statement of Advice Mr Sherwal provided to A_S drew specific attention to the impact of the insurance premiums on her actual and projected superannuation balance, pointed out the benefits of making additional concessional superannuation contributions, actually quantified the permissible amount of the additional concessional contributions she could make, and then advised that it was "imperative" for her to make additional contributions "to at least negate" the insurance premium costs. In those circumstances, the appropriate focus is upon the content of the insurance aspect of Mr Sherwal's June and September 2017 advice to A_S.
Regard to the details recorded in Schedule 1 (row 23) (together with the tpd "correction suggested in paragraph 118 above) reveals that Mr Sherwal's June 2017 Statement of Advice involved (i) a substantial reduction in both A_S's life insurance and TPD cover, (b) a minor increase in her monthly income protection benefit and, (iii) an approximate 10% reduction in the total insurance premium. Regard to the narrative explanation in part of Mr Sherwal's June 2017 Statement of Advice reveals that some aspects of the recommendations were formulaic and insubstantial, and that there was no explicit reasoning to explain the reduction in the life and TPD insurance benefit amount. Nevertheless, the overall advice recommendation was based on the expectation that the proposed new insurance policies would include coverage for mental health disability, an event apparently excluded from (the major part) of A_S's then existing TPD and income protection insurance. In the absence of any evidentiary contradiction, it is appropriate to assume that this was an accurate statement of A_S's existing insurance, and Mr Sherwal's expectation about the availability of additional coverage for mental health events under the proposed new insurance was well placed. On the basis of those assumptions it would be difficult to accept the proposition that the insurance advice in Mr Sherwal's June 2017 Statement of Advice was objectively deficient.
However, Dover's para planner internally queried the following aspects of Mr Sherwal's advice (i) whether there was any significant benefit in changing insurer, (ii) whether the proposed insurance could be obtained at less cost from another insurer, (iii) the insurance premium cost relative to the client's income, and the lack of apparent objective justification for the amount of life and TPD insurance cover. These queries were communicated in emails in late June and early July 2017, and appear to have been based on a version of Mr Sherwal's proposed advice that preceded the final form of the Statement of Advice. This appearance derives from the facts that they (i) refer to a "needs analysis" suggesting a tpd benefit approximating $1.3m, (ii) request quotes for a lesser insurance benefit amount and (iii) express concern about the level of Mr Sherwal's proposed advice fee ($5,700 - as against the $3,991 fee stated in the Statement of Advice).
Those details tend to contradict some of the oral evidence Mr Sherwal gave at the hearing. Necessarily acknowledging that the $1.5m he had recommended in his September 2015 Statement of Advice to A_S was excessive, he asserted that Mr Fuooco had asked him to lift the sum insured "so she could get (the) rebate". He then claimed that he had then approached A_S and "had brought her insurance down to half a million dollars". The first of these, easily asserted, claims, even if it were true, reflects no credit on Mr Sherwal. This is especially the case when the Statement of Advice contained the "best interests" declarations to which I have previously referred:- see paragraphs 29(f) & 29(g) above. The second claim is demonstrably contradicted by the underlying contemporaneous correspondence between Mr Sherwal and the Dover para planner. The contradiction is a matter that contributes to my adverse view of the reliability of Mr Sherwal's evidence, particularly in so far as he attempts to deflect responsibility for inadequate advice away from himself and onto the personnel and procedures in WRM and Dover.
Turning from that spurious explanation back to events as they unfolded in 2017, Mr Sherwal's expectations (about A_S's likely insurability) were in fact disappointed. On 25 September 2017 he wrote a single page email to A_S informing her that the proposed new TPD and income protection insurer had refused to provide coverage for "mental health" events. In addition, the proposed new insurer had imposed a 50% premium loading. In view of this development, Mr Sherwal recommended that A_S retain those parts of her existing TPD and income protection insurance that were not subject to a "mental health" exclusion. However, Mr Sherwal persisted with his advice to replace other aspects of the client's insurance. Indeed, he stated (with obvious inaccuracy) that his 19 June 2017 advice had not changed, and he encouraged A_S to proceed by declaring that she needed the insurance (ie., the proposed new insurance).
As can be seen from the details in Schedule 1 (rows 23 & 24) (and from the Table in paragraph 117 above) the effect of Mr Sherwal's September 2017 advice was to encourage A_S to proceed with new insurance that did not contain the originally contemplated additional cover, and to increase her overall insurance premium cost by about 67% (ie., from $5,285 to $8,833). Furthermore, under the "new" insurance A_S's life insurance benefit was reduced from $1.98, to $0.8m:- see Schedule 1 row 24 columns H & V.
It is difficult to perceive any logical basis for Mr Sherwal's September 2017 advice to A_S. Its overall effect, was to increase her overall insurance premium cost by a substantial amount, provide her with less TPD and life cover than she had previously enjoyed, substantially reduce her superannuation balance, and risk ongoing erosion of her superannuation balance, unless she made additional superannuation contributions. Against that background, Mr Sherwal's 25 September 2017 statement to A_S, that his June 2017 advice "has not changed", was an egregious departure from his obligations to act in the client's best interests. This is the case notwithstanding that A_S was intended to receive a rebate of $3,156 as part of the transactions recommended by Mr Sherwal.[27] It is an inescapable conclusion that the proposed transactions were not in A_S's best interests and that, in his dealings with A_S, Mr Sherwal prioritised his own interests (in obtaining an advice fee and insurance commission).
It is neither necessary nor appropriate to make any adverse finding about the amount of the advice fee that Mr Sherwal charged A_S. Internal correspondence between Mr Sherwal and Dover personnel in early July 2017 shows that (i) his general practice had been to charge a fee equivalent to 10% of the client's superannuation account balance (to minimise the risk of insurance commission "claw back" if the client cancelled recommended insurance", (ii) in response to Dover's concern about the size of the fee, he offered to reduce his fee to 7% of the superannuation account balance, (iii) Dover explicitly agreed that the 7% fee was appropriate, in the particular circumstances, (iv) Dover cautioned that 7% basis was not the benchmark for adviser fees, (v) a more appropriate starting point for fixing an adviser fee was a base amount of $2,200, with the possibility of a higher fee being reasonable, depending on "the complexity of the case and the advice given". Consistent with the later possibility, there is an objective basis for regarding A_S's circumstances as somewhat complex, at least in relation to her insurability. They certainly took some months to resolve. In those circumstances, and the limited evidence available, there is not a clear basis for concluding that Mr Sherwal's advice fee was, of itself, excessive
Leaving aside (consistent with the discussion in paragraph 115 above) the question of mere participation in the cash rebate procedure, ASIC's criticisms of Mr Sherwal's advice to the client M_S were as follows:-

[88]

The Table shows that the effect of the recommendations in the Statement of Advice, had they been implemented, was to (i) increase the amount of M_S's life and TPD cover, (ii) reduce his total insurance premium cost, (iii) effect a substantial percentage reduction in his superannuation account balance and, (iv) provide M_S with a $3,000 rebate. However, the evidence suggests that Dover did not ultimately approve the release of the Statement of Advice, and none of its recommendations was implemented. M_S contacted Dover at the end of July 2017 and (i) reported receipt of email advice from Mr Sherwal that the Statement of Advice had been rejected,(ii) said Mr Sherwal told him he had been "fired" and could no longer assist M_S and, (iii) enquired what was the "next step" - apparently because he needed / was expecting a commission rebate.
It is at least implicit in the content of M_S's end of July enquiry / complaint that the commission rebate he anticipated would have been sufficient to materially assist with the cost of repairs to his car. For that reason, together with the considerations that (i) the Statement of Advice was never issued and, (ii) it would not have been implemented without specific acknowledgement of its limited scope (see paragraph 36 above) had it been issued, the first of ASIC's criticisms is difficult to sustain. So too, the force of ASIC's criticism of the reduction in M_S's superannuation balance, that would have flowed from acceptance of the recommendations in the Statement of Advice, depends more on the overall content and effect of the recommendations. (This is so for reasons previously explained in relation to A_S:- see paragraph 120 above.)
An aspect of ASIC's criticism of Mr Sherwal's participation in the cash rebate procedure at Dover, was that it involved him charging excessive fees, to minimise the risk of insurance commission "claw back" if clients subsequently cancelled recommended insurance. I have addressed that matter earlier in these reasons, in the context of Dover's concern about the advice fee Mr Sherwal had proposed to charge A_S in early July 2017:- see paragraph 127 above. A reasonable inference to draw from that correspondence is that the $3,012 advice fee Mr Sherwal proposed to charge M_S, was only marginally greater than the $2,200 base amount Dover had suggested. Furthermore, if the proposed fee also covered the potential difficulty caused by M_S's cancellation of his previously recommended insurance, such an advice fee amount may have been within the bounds of reasonableness. There is no sufficient evidentiary foundation for a contrary conclusion, in relation to the proposed advice fee for M_S.
Another aspect of ASIC's criticism of Mr Sherwal's advice was that it tended to overstate the costs of his existing superannuation account (that cost being expressed as a proportion of the account balances). However, the realities are that (i) there was an apparent objective advantage in combining M_S's existing superannuation fund accounts (ie., the total cost, as a percentage of the total fund balance, would be reduced), (ii) the cost of the proposed new fund was equivalent to the cost of combining the balances into one of the existing funds and, (iii) there not, in my view, and adequate evidentiary basis for concluding that the costs differences were material / significant to the overall superannuation fund advice.
The preceding considerations tend to focus attention on Mr Sherwal's advice in relation to the level of M_S's life and TPD insurance, given his specific circumstances and, in particular, his income, superannuation balance and financial objectives.
As can be seen from Schedule 1 (see row 4 column V), in the 2017 Statement of Advice, despite Dover's suggestion that he consider reducing the sum insured (see paragraph 129 above), Mr Sherwal recommended life insurance cover of $1.6m. That recommendation contrasts with Mr Sherwal's October 2015 advice to the same client, and based on the same annual income amount, that the appropriate amount of life cover was $1.1m. The proffered basis for the October 2015 advice had been a "needs analysis" that attempted to assess the capital sum which, invested at 4.5% would suffice to replace (implicitly for the benefit of his dependent children) a loss of income resulting from M_S's death. The 2017 advice was also said to have been based on a "needs analysis", but it was not set out in the advice, and was described merely as something that would be made available "on request".
In the October 2015 Statement of Advice Mr Sherwal had recommended income protection insurance providing an annual benefit of $39,000, an amount equivalent to 75% of M_S gross income. Taking that income protection benefit into account, and applying the same logic as that discussed earlier in relation to P_J (see paragraph 94 above), results in an assessment that the "needs analysis" for M_S's TPD insurance was only required to yield an annual benefit of $13,000 (ie., 25% of M_S's annual income), and only for the approximate 33 year period up to M_S's retirement age. In fact, the $1.1m TPD benefit recommended in October 2015, without taking into account any notional investment earnings, would have yielded an annual sum of $13,000 for a period of approximately 84 years. The same analysis, applied to the $1.6m tpd insured sum recommended in the 2017 Statement of Advice, results in the derivation of a period of approximately 123 years.
That analysis demands the minimal conclusion that Mr Sherwal's TPD insurance benefit recommendation to M_S was not in the client's best interests, and the life insurance benefit recommendation appears not to have been appropriate to the client, and has not been shown to be appropriate. The advice was inappropriate for essentially the principal reason identified by ASIC - that it involved a cost that would likely preclude achievement of M_S's longer term objectives. As the Table set out above (in paragraph 130) shows, M_S had a minimal superannuation account balance. The projected insurance premiums represented approximately 74% of M_S's employer superannuation contributions, and 7% of his gross income. The practical result of the 2017 advice would have been that, in the absence of additional concessional superannuation contributions, M_S would have been adding only $1,300 to his superannuation account balance in each financial year that the insurance was in place. That reality underscores the force of the conclusion that the 2017 advice was not in M_S's best interests. That conclusion is not materially undermined by the unquantified generality, included in the Statement of Advice, that it was "imperative" for M_S to make additional contributions to his super fund account. The statement of advice, despite including a "disclosure note" about the "concessional contribution cap" did not distinguish between concessional and non-concessional contributions, did not describe the taxation benefits of the former, and did not quantify the permissible amount of M_S's additional concessional contributions.
ASIC's criticisms of the Mr Sherwal's advice to the client P_M were as follows[30]:-

[90]

In January 2016 P_M had been a client of K_M (one of Mr Sherwal's adviser colleagues at WRM:- see paragraph 55 above). Correspondence between P_M, K_M and other WRM personnel at that time indicates that he participated in the cash rebate procedure at WRM, as a result of advice to take out superannuation funded life, TPD and income protection insurance. (The available details of P_M's circumstances in January 2016 are set out in Schedule 1 - at row 6.) However, the available evidence does not conclusively establish that P_M actually implemented the WRM advice, and the details in the June 2017 Fact Finder he completed for Mr Sherwal, indicate that he then had no relevant life or disability insurance cover.
The first of ASIC's criticisms, the failure to address P_M's short term objective of purchasing a car, is of doubtful significance. Whilst it is accurate to observe that this was one of the objectives P_M stated in his "Fact Finder" a more balanced assessment of P_M's stated overall objective was to ensure a comfortable retirement. His anticipated new car purchase had a five year time scale, and could not reasonably be regarded as either the primary, or even an important, reason for him seeking financial advice. For that reason, together with P_M's written acknowledgment of the limited scope of his Statement of Advice, the first of ASIC's criticisms is difficult to sustain.
In the August 2017 Statement of Advice Mr Sherwal recommended that P_M switch his superannuation from a Commonwealth Bank fund to an IOOF product. The reasons proffered (in Mr Sherwal's para planning request) for the recommendation were, in essence, (i) an asserted lower "Management Expense Ratio" (ii) flexibility in asset allocation and, (iii) active investment management. That reasoning, and the superannuation "switch" recommendation, became part of the queries subsequently raised within Dover, by its para planning personnel.
Those queries of Mr Sherwal's proposed superannuation and insurance recommendations were raised on the basis that (i) the proposed insurance was unaffordably expensive, (ii) the ongoing superannuation fund fees would increase - albeit only marginally (1% as against 1.03%). The para planning personnel also queried whether Sherwal proposed to charge his (previously asserted as "usual") 10% adviser fee. Mr Sherwal responded to those queries in an 18 July 2017 email, and provided the following information (i) a "needs analysis" and new insurance quotations (halving the previously quoted costs) (ii) a correction to the superannuation costs assessment, and a corresponding conclusion that the overall costs of the recommended fund would in fact be less than those of the existing fund and, (iii) disclosure of a $10,000 advice fee proposal. In late July 2017 Dover personnel then (i) suggested that the recommended insurance sums be reduced to $500,000 (from the $1.4m proposed by Mr Sherwal) and, (ii) requested justification for the proposed $10,000 advice fee. Mr Sherwal promptly responded, stating that (i) the proposed $1.4m sum insured was justified (by his previously provided needs analysis) and, (ii) his advice fee would remain at $10,000. Then, after further queries from the Dover personnel, Mr Sherwal (i) submitted revised quotations for a $0.5m sum insured, (ii) provided additional information about the superannuation fund management costs, (iii) said that his proposed fee was 6.5% of the superannuation fund balance, (iii) asserted that there was an "industry standard" fee rate of 5% of the superannuation fund balance, (iv) noted the previous recent correspondence with Dover about advice fees (see paragraph 127 above) and, (iv) said he would reduce his fee to $5,410, corresponding to 3.5% of the superannuation fund balance.
That information still did not satisfy the Dover personnel. They suggested that the $500,000 insured amount might still be excessive. They also requested substantiating justification for the proposed advice fee. Mr Sherwal promptly provided the requested additional insurance information, but asserted that his proposed fee was appropriate, because 60 hours of his time was involved in providing his advice to P_M. The Dover personnel then elevated their concerns, principally about the proposed advice fee, to Dover's principal. He responded, contrary to Mr Sherwal's "60 hour" claim, that the work involved should be able to be done in less than a day. However, whilst cautioning Mr Sherwal that his proposed fee was "very high" (and so high that he doubted the client would accept it) he authorised the release of the Statement of Advice.
That authorisation at least implicitly accepted that the Statement of Advice adequately and accurately addressed the reasoning and details underlying Mr Sherwal's superannuation "switch" recommendation. The essence of that reasoning was to the same effect as, although more detailed than, that contained in the para planning request. The Statement of Advice contained a fee comparison table, which indicated (consistent with the information that Dover's para planner's queries had elicited) that the total costs involved in the switch to the new insurer would involve lower ongoing fees. Notwithstanding that appearance, ASIC's specific criticism was that P_M's Statement of Advice contained incorrect information about the fee impact of rolling over his superannuation, and that Mr Sherwal knew about the inaccuracy, because he had included the correct figures in the paraplanning request. A further criticism was that he had omitted information about exclusions or loadings that would apply upon switching. Those criticisms, quite elliptically expressed in the June 2021 decision reasons, apparently drew on the contents of the April 2020 concerns notice. However, as articulated in that document, ASIC's criticisms were in fact either not substantiated or misconceived. So far at the fee complaint comparison is concerned, there was no demonstrated justification for ASIC's assertion that the fee information in the para planning request was more accurate than the subsequent information in the Statement of Advice. Secondly, examination of the fee comparison information contained in the Statement of Advice reveals that it was information that originated from Dover's para planner, and did demonstrate that the costs associated with the superannuation fund "switch" would be lower. So far as concerns ASIC's oblique reference to "loadings and exclusions", the content of the notice of concerns gives the impression that it was based on the misconception that M_P had existing insurance, and was being advised to change to a new insurer.
In that context, it is informative to set out a summary of P_M's circumstances, both as they appeared from the 8 June 2017 Fact Finder, and from the August 2017 Statement of Advice. That summary is evident in the following Table.

[91]

It is also necessary to note that Mr Sherwal's TPD and income protection advice recommendations were frustrated by the insurer's subsequent refusal to accept those policies. That occurred in late September 2017. At that time, Mr Sherwal informed M_P of the refusal, confirmed that he would not charge any additional advice fee and indicated that the previously proposed commission rebate ($5,410) would be reduced to $1,800.
The apparent primary thrust of ASIC's criticism of the fee Mr Sherwal charged M_P was (as in the case of A_S - see paragraph 127 above) that the cash rebate procedure involved a 10% advice fee that contained some buffer element against the risk of insurance commission "claw back" if clients subsequently cancelled recommended insurance. However, as the Table shows, M_P's Statement of Advice was completed after the July 2017 fee discussion between Dover and Mr Sherwal. The Table also shows that, having initially proposed a $10,000 advice fee (apparently reflecting 6.5% of M_P's superannuation balance) Mr Sherwal ultimately charged a $5,410 fee (reflecting 3.5% of the client's superannuation balance). It obvious that, in pursuing fees in that range Mr Sherwal was moving away from his previously asserted 10% fee. It is also apparent, from the contemporaneous correspondence to which I have referred, that fees within those percentage ranges were within the range of industry practice / reasonable opinion. That is not to say that a percentage based fee was necessarily proper. Indeed, Dover's previously communicated view that the usual starting reference fee for an uncomplicated advice was in the order of $2,200, necessarily contradicts such a proposition. However, it does tend to remove the substance of ASIC's primary fee advice criticism. The ultimate basis Mr Sherwal asserted for the fee he proposed to charge M_P was the time he claimed to have spent in attending to the client's affairs. The reaction of Dover's chief executive to that assertion gives reason to question its factual accuracy. But there is not, in my opinion, a sufficient evidentiary basis to require an answer that is adverse to Mr Sherwal. Part of the reasoning influencing that opinion is Dover's ultimate acquiescence in the fee charged. Another part is the absence of full details of M_P's dealings with Mr Sherwal. Another part is the fact, not explored in the evidence, that M_P's recommended insurance was ultimately refused by the proposed insurer. A final aspect, related to the latter circumstance, is the apparent absence of full details of the nature and extent of M_P's dealings wit[31]Mr Sherwal.31
The details in the Table point to a degree of justification for ASIC's criticism that Mr Sherwal was prepared to recommend a level of insurance cover that greatly exceeded the M-P's reasonable needs. That pointer derives from applying the underlying logic discussed earlier (see paragraphs 94 & 137 above) to the insurance recommendations Mr Sherwal originally proposed in his para planning request. The vastly reduced TPD insurance benefit recommendations ultimately included in the 14 August 2017 Statement of Advice were made only in response to the concerns persistently expressed by Dover para planning personnel. Even then, there is a logical basis for concluding that the $500,000 TPD insured sum included in the Statement of Advice was still excessive. That logical basis appears from the following Table.

[92]

If the TPD insured sum "surplus" suggested in the immediately preceding Table, were the only basis for criticism of Mr Sherwal's recommendation, I doubt that there is a sufficient evidentiary foundation for an affirmative conclusion that the recommendation was not in M_P's best interests. The mere fact of the apparent "surplus" is only one of the relevant considerations. Other permissible considerations would include (i) the client's subjective intentions in relation to retirement, (ii) an allowance for uncertainty, and (iii) the premium cost significance of the apparent "surplus", particularly having regard to a client's overall and longer term objectives.
In that context, it is very material to note that the Dover para planning personnel had persistently expressed concern about both the TPD sum insured and the premium affordability. In particular, they had encouraged Mr Sherwal to pursue "stepped" rather than "level" premium payments. Despite that concern, Mr Sherwal maintained the insurance recommendation involving level premiums - on the dual bases that (i) the overall cost would be less and, (ii) the predictability of level premiums. At the same time he included in the Statement of Advice information indicating that stepped premiums would be less expensive for between 4 and 9 years, depending on the particular type of insurance.
When one bears in mind M_P's principal objective (of comfortable retirement), his age (47 as at 14 August 2017) and the proportion of his employer funder superannuation contributions that would be absorbed by the recommended insurance premiums 74%) there is force in ASIC's criticism that appropriate advice to M_P should have included a more disciplined and detailed assessment of the impact of the insurance recommendations (and the advice fee) on M_P's current and projected superannuation balance. In that context, it is notable and significant that the Statement of Advice, despite concluding with a disclosure about the current concessional superannuation contribution limits, and alluding to possibility of additional superannuation contributions, did not (i) distinguish between concessional and no-concessional contributions, (ii) quantify the permissible amount of M_P's additional concessional contributions and, (iii) contain any recommendation that it was either "imperative" or even desirable for M_P to make any additional superannuation contributions:- compare the observation in paragraphs 113 & 120 above.
The combined significance of the matters referred to in the preceding paragraphs does not satisfy me that there is a sound evidentiary basis for a conclusion that Mr Sherwal's Statement of Advice was not in the best interests of M_P. The evidence does not fully reveal the ultimate quantitative significance of the disputable insurance premium costs. Furthermore, despite the persistent anxiety that Mr Sherwal's originally proposed advice had provoked withing Dover, the final content of his Statement of Advice was approved, and that approval points towards the advice being within the range of reasonable judgment that it did accord with the client's best interests. On the other hand, and recognising that such a conclusion involves some degree of apparent inconsistency, I am inclined to the view that the Statement of Advice was not sufficiently appropriate for M_P. I am inclined to that view because it did not fully articulate and quantify the consequences of the insurance advice on M_P's projected superannuation balance. Neither did it adequately advise M_P about the desirability, given his longer term retirement objective, of making additional superannuation contributions. The deficiencies of the advice, in those respects, were primarily those of Mr Sherwal, and they are not relevantly ameliorated by the fact of Dover's apparent internal approval of the contents of the Statement of Advice. I am also inclined to the view, given the content of Mr Sherwal's initially proposed fee, and insured sum advice, and his reluctant acquiescence to Dover's criticisms, that there is reason to believe in M_P's future failure to comply with financial services laws.

[93]

ASIC contended Mr Sherwal had failed to act in his clients best interests in a number of different respects, namely (i) failure to identify the client's desired advice subject matter, (ii) failure to make appropriate enquiries about the client's affairs, (iii) failure to adequately investigate or assess potentially suitable products and, (iv) failure to base his advice on the client's circumstances. These criticisms were expressed at a level of generality, and in their generality, somewhat overlapped. They were advanced solely on the basis of a review of client files, and were not supported by any evidence, of complaint, criticism or dissatisfaction, from any of the individual clients. Furthermore, the section 37 documents ASIC lodged in support of the June 2021 decision appeared to be less extensive than the client file to which it had had regard in the course of its investigation and decision making. Those limitations in the material have resulted in my reservations about the justification for ASIC's criticisms particularly where they were primarily based on the assertions about the limited nature of the advice provided to the individual clients:- see paragraphs 80, 91, 100, 119, 132, 141 above. Nevertheless, there is an adequate evidentiary basis for concluding that Mr Sherwal failed to act in client's best interests, where he advised them to place new superannuation funded insurance, as part of their participation in a cash rebate procedure:- see the findings I have made in paragraphs 83 to 86, 95, 104 to 109, 125 & 126 and 138 above. The same evidentiary basis, complemented by the circumstances of Mr Sherwal's commission entitlement at WRM, and his receipt of commission rebates whilst at Dover, justifies the further conclusion that Mr Sherwal failed to prioritise his client's interests in the advice he gave. That evidentiary basis is further complemented, and indeed emphasised by the concessions Mr Sherwal made in his various responses to ASIC, and to which his legal repres[32]tative (necessarily acting on instructions) at the outset of the review proceedings:- see paragraphs 6(j), 7(c) above.32
There are at least some instances where the content of Mr Sherwal's advice to clients was not appropriate:- see the findings I have made in paragraphs 89 & 90 and 153 above.
There are also instances where the content of Mr Sherwal's advice failed to comply with the "additional advice" obligation in CorpAct s 947D:- see the finding I have made in paragraph 109 above.
In four instances ASIC contended that Mr Sherwal's formal advice had failed to adequately address matters significant to the advice to change the client's existing superannuation and / or insurance. In two instances, I am not satisfied that ASIC made out the substance of its criticism. Those client matters, and the paragraphs of these reasons where I have addressed them, are as follows:-

[95]

In one instance, the evidence tends to support ASIC's criticism, but I am not satisfied that it is sufficiently clear to warrant an affirmative conclusion that Mr Sherwal separately failed to comply with his obligations under CorpAct s 947D. This relates to P_J:- see paragraph 92 above.
The last of the four matters concerns W_L. In that instance, and for those reasons, I am satisfied that it is appropriate to conclude that Mr Sherwal failed to comply with his obligations under CorpAct s 947D:- see paragraph 109 above.
Although specific demonstration of Mr Sherwal's objective failures focussed principally on only six clients, the evidence established that Mr Sherwal regularly used the cash rebate procedure both at WRM and during his time at Dover. There is no evidentiary basis to conclude that the demonstrated failings in the content of his advice were merely episodic instances of aberrant behaviour in his use of a cash rebate procedure:- see in particular paragraphs 37, 67 to 72 above.
The specifically demonstrated failings in aspects of Mr Sherwal's financial advice to particular clients, when viewed against both the advice criteria in the template Statements of Advice, and the critical comments he received from Dover personnel about aspects of his practices and advice, justify reasonable apprehension about his underlying competence as an adviser, and about the likelihood of future contravention of financial services laws, were he to have a role as a financial adviser. See paras relating to K_E 59 to 66_f_f
Mr Sherwal's submission that deficiencies in the training and support provided to him at WRM and Dover, relevantly diminish the force of criticism of his financial advice, and the justification for apprehension of future financial services laws non-compliance, should not be accepted. There are several reasons for coming to that conclusion.
First of all, despite the concessions to which I have referred, in his oral evidence Mr Sherwal insisted that he had not in fact deviated much from his proper advising role and had in fact complied with all the regulations. This was a positive assertion. It was inconsistent with an assertion of failure whose significance was diminished by a lack of training. Second, no special knowledge or training was required to alert Mr Sherwal to his bests interests obligation, or to his client priority obligation. The Statement of Advice template at WRM was very explicit in its statement of those obligations, and in corresponding declarations of their discharge in relation to the particular client:- see paragraphs 29(f) & 29(g) above. The Dover Statement of Advice template, though less specific, was similar in effect and, more importantly, the Dover procedures (illustrated by the exchanges of correspondence between Mr Sherwal and other Dover personnel) could only have served to bring awareness of those obligations to the forefront of the considerations of a reasonably competent and careful financial adviser:- see paragraphs 112 & 113. In those circumstances Mr Sherwal's attempt to deflect criticism onto WRM and Dover is unpersuasive. Mr Sherwal's advice failures were personal failures, in no meaningful sense attributable to lack of knowledge, training or support. If he succumbed into, or was circumstantially influenced to adopt, a formulaic, pressured and uncritical approach to his responsibilities as a financial adviser, that was a personal failure to discharge his basic obligations.
In particular, I am not satisfied that any significance, favourable to Mr Sherwal, should be drawn from his concession that proper advice to cash rebate clients should have included encouragement to make additional superannuation contributions:- see paragraph 7(d) above. Neither am I satisfied that any favourable significance should be given to Mr Sherwal's assertions, in his oral evidence at the hearing, that (i) the WRM Statements of Advice did include advice to make additional superannuation contributions and, (ii) that the Dover para planning personnel refused to include similar statements, apparently despite his suggestion or complaint.
So far as concerns the concession, the desirability of specific advice to that effect was patently obvious from the specific statements in the WRM Statement of Advice templates:- see paragraph 29(e) above. However, those statements were themselves deficient, in the respects I have previously noted:- see the footnote to paragraph 29 above. Second, the suggestion that Dover personnel rejected the inclusion of superannuation contribution advice in the Dover Statemen of Advice template is difficult to reconcile with, and in my view is relevantly contradicted by, the available documents. Mr Sherwal's own conduct, in relation to his Statement of Advice to A_S tends to demonstrate that fact, and is eloquent testimony to his contemporaneous awareness of the importance of specific advice in relation to concessional superannuation contributions:- see paragraph 120 above. Against that background, the apparent absence of similarly specific material advice from other (Dover) Statements of Advice, complemented by the implication from his concession, justifies a conclusion that Mr Sherwal's personal failure to provide advice of that kind, betokens a lack of reliable care and attention in the consideration of client's affairs.
The specific advice failures I have identified, when viewed against the content of the Statement of Advice templates, give rise to a doubt as to whether Mr Sherwal did subjectively believe that his advice was genuinely in the best interests of clients, and that he had properly accorded priority to the client's interests:- see for example the matters discussed in paragraphs 37, 85, 94 & 95, 126 and 137 above. However, in its decision reasons ASIC accepted that Mr Shewal had held such a belief, and it is neither necessary nor appropriate to now resolve that doubt adversely to Mr Sherwal.
Nevertheless, the objectively established, though inconsistently conceded, fact of Mr Sherwal's failure to act in the client's best interests and to prioritise their interests, does question both Mr Sherwal's competence and his fitness to provide financial services. So far as the question of technical competence is concerned, I think the better view is that Mr Sherwal has the required qualifications, experience, training and ability to provide financial services, at least in the capacity of an authorised representative of and AFSL holder. I am influenced to that conclusion by (i) his considerable substantive qualifications (see paragraph 1 above), (ii) my overall impression (derived from a reading of all the "fact finder" and advice documents relating to the clients referred to in the Schedule) that he has an appropriate breadth of knowledge, (iii) the impression, derived from the same background information, that his impugned conduct resulted from a circumstantially influenced lack of judgement rather than lack of competence, (iv) Mr Sherwal's concessions (despite the degree of apparent inconsistency I have noted) about the shortcomings in his advice and conduct.
So far as the question of Mr Sherwal's underlying fitness is concerned the criterion is the existence of reason to believe in the absence of fitness, rather than positive satisfaction of lack of fitness. Nevertheless, I am inclined to the view that a contemporary finding adverse to Mr Sherwal is not appropriate. I am of that view for these reasons:- (i) much of the thrust of ASIC's initial criticism of Mr Sherwal's conduct was based on the asserted unlawfulness of the "cash rebate" procedure, but that criticism was misconceived and ultimately abandoned, (ii) another aspect of the criticism of Mr Sherwal was that he had taken advantage of financially disadvantaged clients, but that criticism, if it was intended to colour the significance of his failure to act in the clients best interests, was undermined by disavowal of any suggestion that Mr Sherwal had played any part in WRM's marketing of the cash rebate procedure, (iii) another misconceived criticism was directed at the assistance Mr Sherwal provided to K_E (see paragraphs 59 to 66 above), (iv) my finding that Mr Sherwal has the requisite competence and training contributes towards a satisfaction of his fitness to provide financial services, (v) Mr Sherwal's expressed concessions, together with his disavowal of any future participation in any "cash rebate" procedure, also contribute to satisfaction that, given his competence and training, he is a "proper" person to be permitted to provide financial services, (vi) Mr Sherwal's last demonstrable failure to comply with a financial services law occurred more than five years ago, (vii) no finding relating to unfitness is necessary to enliven the ban decision discretion and, (viii) the public interest is best served by addressing the question of Mr Sherwal's fitness to provide financial services in a contemporary (and necessarily future) setting where he is not otherwise subject to an impediment to his ability to provide services of that kind.

[98]

The generalities derived from Regulatory Guide 98 are not prescriptive limitations. Each exercise of the discretion, whilst permissibly informed by those generalities must be informed and disciplined by regard to, and evaluation of, all the relevant circumstances both of the person's conduct and their current situation at the time the discretion is required to be exercised. ASIC pressed for affirmation of the six year ban period on the bases that Mr Sherwal's impugned conduct (a) was neither minor, inadvertent nor merely careless and, (b) was better characterised as participation in an unlawful, exploitative scheme that resulted in substantial diminution of client's modest superannuation means. ASIC contended that the six year period was appropriate because Mr Sherwal's conduct should be regarded as within the mid range of seriousness contemplated as generally appropriate to ban periods involving more than mere carelessness.
There is a degree of force in ASIC's contention. As I have found, the deficiencies in Mr Sherwal's advice involved more than mere carelessness. In making my various findings, I have gone to some length to demonstrate the nature of Mr Sherwal's errors, the extent to which they result from formulaic reasoning, sometimes lack demonstrably rational justification, and are objectively incompatible with "best interests" assertions and declarations in the Statements of Advice. To that extent, Mr Sherwal's established financial services laws non-compliance are not matters of mere inadvertence or lack of care. They betray a significant and sustained failure to afford priority to client interests. On the other hand, ASIC's contention that Mr Sherwal participated in an "unlawful and exploitative cash rebate scheme" has not been established. I say that because (a) as ASIC ultimately acknowledged, the cash rebate procedure was not itself unlawful, (b) ASIC disavowed any contention that Mr Sherwal had any role in the marketing of the "scheme" by WRM, (c) in making the June 2021 decision the ASIC delegate accepted that Mr Sherwal had actually believed he was acting in the particular client's best interests and, (d) for the reasons previously addressed, I do not consider it appropriate, given the matters addressed in the review proceedings, to make a finding that contradicts that positive finding by the delegate:- see paragraph above.
Necessarily the selection of the appropriate banning period is a matter of impression. Minds can reasonably differ in the degree of significance they attach to particular considerations, and the appearance of consistency, though desirable, is a difficult to achieve ideal. In the present case, there is a rational and reasonable basis for regarding ASIC's 6 year ban period as appropriate. However, the preferable course, in my view, is to recognise that some aspects of ASIC's decision reasoning were misconceived, likely influenced ASIC's selection of the six year period, and should be discounted in exercising the review function. When those matters are discounted, I consider that the preferable course is to impose a five year ban period. Such a period has the co-incidental advantage of being about half the period of the ban that was imposed on Mr Fuocco and, to my impression, being apparently more proportionate to the respectively culpability of the two individuals:- see the footnote to paragraph 1(c) above.

[99]

ASIC's June 2021 ban decision extended to ban Mr Sherwal from "performing any performing any function involved in the carrying on of a financial services business (including as an officer, manager, employee, contractor or in some other capacity)". This decision was supported partly on the basis of the nature of the contravention findings made against Mr Sherwal, partly on the basis of an express finding that he was not a fit and proper person "to participate in the financial services industry" and partly because of the related proposition that Mr Sherwal had "no place in the financial services industry".
The scope of the June 2021 ban decision was specifically authorised by CorpAct s 920(1)(d). However it is notable, and in my view significant, that ASIC's banning power is only available (relevant to the present topic) where ASIC has reason to believe the person is not fit and proper (or lacks training or competence) to perform functions "as an officer" of an entity that carried on a financial services business. It is also significant that neither kind of ban was imposed on Mr Joshua Fuocco in the 2018 Federal Court decision in the WRM proceedings:- see paragraph above.
There may be circumstances where the conduct of a particular person, and the apprehensions about their honesty and future compliance with financial services laws, is so serious that they should be precluded from any function involved in carrying on a financial services business. But those circumstances are likely to be extreme, and they do not exist in the present case. It would be unacceptably ironic, and inappropriate, to preclude Mr Sherwal from "any function" in volved in the carrying on of a financial services business, when no such preclusion applied to Mr Joshua Fuocco, given his apparent role as the influential mind behind the implementation of the cash rebate "scheme", at least at WRM.
In my view, given the nature of the findings I have made, and the extent of Mr Sherwal's past activities in the conduct of a financial services business, it is both appropriate and sufficient for achievement of the Chapter 7 objectives if the scope of the ban extends only to the provision of financial services and to the performance of any function "as an officer or manager of an entity that carries on a financial services business".

Sherwal and Australian Securities and Investments Commission [2022] AATA 4192 (7 December 2022)

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

Sherwal and Australian Securities and Investments Commission [2022] AATA 4192 (7 December 2022)

Legislation Cited (5)