Update from ASIC regarding Sterling Group investigation

25 September update

ASIC wishes to provide a further update to interested parties regarding ASIC’s action in the Federal Court of Australia against the Responsible Entity of the Sterling Income Trust, Theta Asset Management Ltd (In Liquidation) and its managing director, Mr. Robert Patrick Marie.

By consent the Court has vacated the case management hearing scheduled for 1 October 2020, the matter is tentatively listed for a hearing on penalty on 19 November 2020. Prior to the hearing and before 9 October 2020, the parties are to file an agreed statement of facts, joint submissions on penalty and an agreed short minute of orders as to penalty. The Parties have liberty to apply on two days’ notice.

For more information on this Federal Court action please see: ASIC Media Release 19-347MR ASIC takes court action against Sterling Income Trust responsible entity and its managing director.

ASIC will provide a further update following the outcome of the hearing on penalty tentatively listed on 19 November 2020.

26 August 2020 update

ASIC refers Sterling investors to an AFCA update on its website at  https://www.afca.org.au/news/current-matters/sterling-group-investors regarding:

  • information for consumers who have not yet lodged a complaint with AFCA, including time limits relevant to lodging a complaint about Theta Asset Management Ltd (Theta);
  • more information for consumers who have a claim against Theta about how to lodge a Proof of Debt with Theta’s liquidators, and time limits that apply;
  • general information about how AFCA may approach the issue of loss in misleading conduct complaints lodged with AFCA; and
  • how AFCA approached a recent determination against Theta in regard to a Sterling investor.

ASIC draws investors’ attention to Case No 667682 referred to in the AFCA update regarding a recent AFCA determination in respect of a Sterling investor, where AFCA determined compensation of $118,957.60 was payable to the complainant (from the total aggregated investment contributions paid by the complainant of $156,761.31, after allowing for deductions for rent benefits/savings).

Taking into account this latest advice from AFCA, ASIC remains of the view that it is in the interests of investors in the Sterling Group of Companies to lodge and maintain their complaints with AFCA.  Further, investors who have a claim against Theta should also consider lodging a Proof of Debt with Theta’s Liquidators.

17 July 2020 update

ASIC wishes to provide a further update to interested parties regarding ASIC’s action in the Federal Court of Australia against the Responsible Entity of the Sterling Income Trust, Theta Asset Management Ltd (In Liquidation) (Theta) and its managing director, Mr. Robert Patrick Marie.

The Court has ordered by consent that the parties participate in a mediation by 25 September 2020. The case management hearing has been adjourned to 10:00 am on 1 October 2020 and the parties have liberty to apply on three days’ notice.

For more information on this Federal Court action please see: ASIC Media Release 19-347MR ASIC takes court action against Sterling Income Trust responsible entity and its managing director.

ASIC will provide a further update following the outcome of the case management hearing on 1 October 2020.

17 June 2020 update

ASIC wishes to provide a further update to interested parties regarding ASIC’s action in the Federal Court of Australia against the Responsible Entity of the Sterling Income Trust, Theta Asset Management Ltd (In Liquidation) (Theta) and its managing director, Mr. Robert Patrick Marie.

The Court ordered by consent that:

  1. The parties participate in a mediation by 13 August 2020
  2. The telephone case management hearing listed at 10:45am (AWST) on 18 June 2020 be adjourned to 10am on 20 August 2020 subject to the release of the Court’s August Full Court listings, and
  3. The parties have liberty to apply on 3 days’ notice.

For more information on this Federal Court action please see: ASIC Media Release 19-347MR ASIC takes court action against Sterling Income Trust responsible entity and its managing director.

ASIC will provide a further update following the outcome of the Case Management Hearing provisionally set for 20 August 2020.

4 June 2020 update

ASIC wishes to provide a further update to interested parties regarding ASIC’s action in the Federal Court of Australia against the Responsible Entity of the Sterling Income Trust, Theta Asset Management Ltd (Liquidator Appointed) (Theta) and its managing director, Mr. Robert Patrick Marie.

As previously advised (see 15 April 2020 update below) in regard to ASIC’s action in the Federal Court, the Court advised that due to COVID-19, the Case Management Hearing originally listed for 6 May 2020 would now be determined having regard to the written submissions and documents filed by the parties, rather than by hearing oral submissions by the parties. For more information on this Federal Court action please see: ASIC Media Release 19-347MR ASIC takes court action against Sterling Income Trust responsible entity and its managing director.

Subsequently the Court granted additional time(s) to the parties to lodge their submissions with the Court.

The next Case Management Hearing is now listed for 18 June 2020, and is to proceed by way of video link.

ASIC will provide a further update following the outcome of the Case Management Hearing on 18 June 2020.

15 April 2020 update

ASIC wishes to provide an update to interested parties regarding ASIC’s action in the Federal Court of Australia against the Responsible Entity of the Sterling Income Trust, Theta Asset Management Ltd (Liquidator Appointed) (Theta) and its managing director, Mr. Robert Patrick Marie. ASIC also wishes to draw the attention of interested parties to updates from the Australian Financial Complaints Authority (AFCA) relevant to this matter.

In regard to ASIC’s action in the Federal Court, the Court has advised that, due to COVID-19, the Case Management Hearing listed for 6 May 2020 will now be determined having regard to the written submissions and documents filed by the parties, rather than by hearing oral submissions by the parties. ASIC will provide a further update on the outcome of the hearing, which will be procedural in nature, after 6 May 2020. For more information on this Federal Court action please see: ASIC Media Release 19-347MR ASIC takes court action against Sterling Income Trust responsible entity and its managing director.

ASIC refers Sterling investors to two recent AFCA Media Releases on the AFCA website.

The first is AFCA’s Media Release dated 27 March 2020 entitled 'Statement on Sterling Complaints'.

ASIC notes AFCA’s comments in that Media Release regarding:

  • the recent withdrawal of a number of Sterling complaints; and
  • the potential for these withdrawals to hamper complainants’ potential access to any compensation scheme of last resort that is ultimately able to be established by the Federal Government (Compensation Scheme of Last Resort).

AFCA on 14 April 2020 provided a further update on its website in relation to its consideration of complaints relating to insolvent companies (such as Theta and most of the companies within the Sterling Group of Companies, including the Silverlink entities) and a Compensation Scheme of Last Resort being considered by the Federal Government.

ASIC notes particularly the following advice from AFCA:

'AFCA acknowledges that the COVID-19 pandemic has subsequently become the key priority and focus for the Government, and as a result it is unclear what the impact will be on the establishment of a compensation scheme of last resort. 

Until there is certainty provided about the scope and timing of the Compensation Scheme, AFCA has reviewed and put in place appropriate arrangements for dealing with any complaints it receives against insolvent financial firms. AFCA will put a pause on processing complaints against insolvent firms, this includes existing and new complaints. AFCA will accept future complaints about insolvent financial firms, but we will hold them over until there is more clarity about the Compensation Scheme, and the parameters of the scheme.'

Taking into account this latest advice from AFCA, ASIC remains of the view that it is in the interests of investors in the Sterling Group of Companies to continue to lodge and maintain complaints with AFCA, as it is only by doing so that such investors could be considered for compensation under any potential future Compensation Scheme of Last Resort that is ultimately able to be established.

25 February 2020 update

A hearing was held in the Federal Court in Perth on 25 February, at which ASIC was granted leave to continue its application against Theta despite it having gone into administration.

The matter is due to return to the Court on 6 May 2020 for a case management hearing.

11 December 2019 update

Civil proceedings commenced by ASIC

ASIC has commenced action in the Federal Court in Western Australia focussed on the promotion and management of the Sterling Income Trust.

The action is against:

  • Theta Asset Management Ltd (Theta), an Australian financial services licensee and responsible entity of Sterling Income Trust; and
  • Robert Patrick Marie (Mr Marie), a director of Theta.

ASIC alleges that Theta and Mr Marie were responsible for authorising the issue of five Product Disclosure Statements for the Sterling Income Trust, failing to ensure that each of them was not defective. In particular, it is alleged that Theta and Mr Marie failed to ensure that they did not contain:

  • misleading or deceptive statements; and
  • omissions in respect to statements and information required to be disclosed.

ASIC also alleges multiple failures by Theta that are contrary to the compliance plan that Theta issued for the Sterling Income Trust.

ASIC is seeking:

  • declarations of breach against Theta and Mr Marie for various breaches of the responsible entity and director’s duties provisions of the Corporations Act 2001;
  • civil penalties against Theta and Mr Marie; and
  • an order banning Mr Marie from managing corporations.

Read the full ASIC Media Release 19-347MR ASIC takes court action against Sterling Income Trust responsible entity and its managing director.

ASIC, as part of the media release, has made both the Concise Statement and the Originating Process available for download so that interested parties can obtain greater detail with respect to ASIC’s Court proceedings.

Despite the commencement of these Court proceedings, investors in the Sterling Income Trust and in Silverlink Preference Shares are strongly encouraged to continue to pursue the avenues of assistance detailed below in this website notice.

 

Background

Of the 101 consumers who entered into Sterling New Life Leases, 63 of those Lessees invested in the Sterling Income Trust to generate funds to cover their rental expenses under such Leases. The remaining 38 Lessees did not invest in that Trust, rather they invested in Preference Shares offered by companies by the name of 'Silverlink' within the Sterling Group of Companies. Because Theta as Responsible Entity only had duties in relation to the Sterling Income Trust, the Court proceedings commenced by ASIC in the Federal Court are relevant to investors in the Sterling Income Trust but not relevant to investors in the Silverlink Preference Shares.

ASIC continues to investigate the roles and conduct of several parties at various points in time during the operation of the Sterling Group of Companies, including in relation to the promotion of the Silverlink Preference Shares. Consequently, it is expected that ASIC’s investigation of other aspects of the conduct in this case, not covered by the current Court proceedings, will continue well into the new calendar year due to the requirement to gather evidence admissible in a court of law to support any further proceedings ultimately considered appropriate.

Communication of this and future updates

Although no two investors will have had exactly the same dealings with the Sterling group or are currently in exactly the same circumstances, there are many issues of concern that are common to investors. It is therefore ASIC’s assessment that it is appropriate that all investors and their families should receive the same information via the ASIC website.

Although there are strict legal restrictions on ASIC’s ability to share information regarding its investigations, ASIC will continue to provide via the ASIC website such updates as it lawfully can in relation to any significant developments in its ongoing investigation and in relation to the Court proceedings it has commenced.

Avenues of assistance for investors:

There are currently a number of avenues available to individual investors to protect their interests, including seeking compensation. It is important that investors consider pursuing these avenues at the earliest opportunity, as delay in doing so may adversely affect investors’ interests.

For ease of reference, the avenues of assistance are:

For those investors who have invested in the Sterling Income Trust (SIT) overseen by Theta Asset Management ltd (Theta):

A letter dated 9 May 2019 from Theta to all investors in the SIT set out the rights of investors in the SIT and how to make complaints to Theta. In that letter Theta stated that its compliance manager would aim to resolve complaints within 45 days, but if you were not satisfied with its response you could lodge a complaint with the Australian Financial Complaints Authority (AFCA).

Further information about how to make a complaint about a financial firm can be found in ASIC Information Sheet 174 via the following link - https://asic.gov.au/about-asic/contact-us/how-to-complain/disputes-with-financial-firms/

It is important to be aware that AFCA will generally only be able to consider your complaint if it is made within six years after you first became aware, or ‘should reasonably have become aware’, that you suffered the loss you want to complain about; or if you have already complained directly to your financial firm through its internal dispute resolution (IDR) process, within two years of getting a response from your financial firm through that process. However, AFCA has advised that it will accept complaints about conduct of financial firms dating back to 1 January 2008 even if they would normally fall outside these time limits, provided those complaints are lodged between 1 July 2019 and 30 June 2020 (see the material on their website about legacy complaints for more information regarding this). AFCA may possibly extend its time limits outside this period, however you should not rely on this.

AFCA may provide a remedy if you have incurred loss that was caused by a financial firm’s conduct. It may order that you be compensated for your loss to the extent AFCA holds the financial firm responsible for that loss. Further information on how AFCA deals with complaints and the relevant time limits can be found at https://www.afca.org.au/.

For investors who have entered into a Sterling New Life lease:

Macquarie Bank

After an approach by ASIC, despite having no legal obligation to do so, the secured creditor of the Sterling Group, Macquarie Bank, has made available Macquarie’s Client Care Team to speak to Sterling New Life lease tenants / investors about their particular individual circumstances, to try to offer assistance where it can. Those tenants/ investors are able to access that assistance via the office of the liquidators of the Sterling group of companies, Ferrier Hodgson, on sterling@fh.com.au or 08 9214 1473. Macquarie Bank had no involvement in promoting Sterling New Life leases, but is making its Client Care Team staff available to try to offer assistance where it can to tenants in a vulnerable position. Landlords in a vulnerable situation are advised to consider contacting their own bank/ finance-provider, which will have a similar Client Care/Vulnerable Client team to Macquarie, and be in a better position to discuss with the landlord his or her individual circumstances.

For investors who have entered into a sterling new life lease and affected landlords:

The Department of Mines Industry Regulation and Safety (Consumer Protection Division)

Advice on tenancy rights is available via (08) 6552 9232 and jan.fairfield@dmirs.wa.gov.au.

Tenancy WA

Advice on tenancy matters is available via (08) 9221 0088 or locate a tenancy advocate at http://www.tenancywa.org.au/find-a-tenant-advocate

For all investors in investments offered by the Sterling Group of companies:

Financial Counsellors’ Association of Western Australia.

Free independent financial counselling and legal advice on (08) 9325 1617.

Consumer Credit Legal Services

Provides legal advice and representation to consumers in WA in the areas of credit, banking and finance on (08) 9221 7066 and https://cclswa.org.au/about-us/about-cclswa/. There are time periods within which legal proceedings must be commenced. You should therefore seek legal advice to ensure that you will not be prevented from taking any legal action you might wish to take in the future due to these time limitations.

Anglicare WA

Offers a wide range of services, with almost 50 service locations across WA Financial and general counselling services on 1300 11 44 46.

 

Last updated: 25/09/2020 01:30