13.3 What the case study showed

In each case, members were charged fees for services that were not provided because of failures in the trustee’s systems. StatePlus did not update its procedures. OPC failed to follow its procedures. Asgard and BT had both inadequate procedures and inconsistent processing. As a result, each trustee took money from members to which it was not entitled. In each case the conduct continued for several years. In the case of OPC, it continued for over a decade.

As I said in connection with home loans in the Interim Report, processing errors are failures by entities to make proper provision in their systems to charge customers only what the customer has agreed to pay. Entities should not sell what they cannot deliver.[1]

Each of the three entities acknowledged that its actions constituted misconduct.[2] Westpac specifically acknowledged that its conduct may have breached its obligations under section 912A of the Corporations Act.[3] I agree. In my view, the conduct of each entity may have breached section 912A(1)(a) of the Act, in that the trustee failed to do all things necessary to ensure that the financial services covered by its Australian financial services licence were provided efficiently, honestly and fairly. Each matter having already been reported to ASIC, it is a matter for it to decide what, if any, further action should be taken.

[1] FSRC, Interim Report, September 2018, Vol 1, 67.

[2] FTC, Submission, 29 January 2018, 4 [3.7]; ANZ, ANZ Submission in Response to the Commission’s Letters of 15 December 2017, 29 January 2018, 12 [5.31], 15 [5.41]; Westpac, Module 5 Case Study Submission, 1 [2].

[3] Westpac, Module 5 Case Study Submission, 1 [2].