POSSIBLE ACTIONS AVAILABLE TO INVESTORS IN M+FIXED INCOME NOTES (UNSECURED PROMISSORY NOTES)

Australian Financial Services Licences (AFSL) and Mayfair Investment Schemes.

Mayfair 101’s website contains the following disclaimer, which tells us a little about the status of AFSL licenses held in respect of its products:

mayfair screenshot

Quattro Capital Group held the AFSL for Mayfair 101/Mayfair Platinum.

“Perth based Quattro Capital Group holds an Australian Financial Services Licence (AFSL) and two Mayfair entities are listed as its corporate authorised representatives.

Those entities trade as Mayfair 101, the head entity of the Mayfair group, and Mayfair Platinum, the brand for its new fixed income investment offerings.”

Quattro may have failed to adequately manage conflicts of interest within the Mayfair Group.

“The license holder has a duty to manage conflicts of interests and is accountable for the actions of the corporate authorised representative”.

“Mayfair 101, which has heavily promoted its Mayfair Platinum brand as an alternative to bank deposits, operates under a financial service license controlled by an individual who shares other business interests with the group. One of [Mayfair’s] investments, a Perth-based lending company, has close ties to the individual that oversees Mayfair by virtue of allowing it to raise funds under its license. Perth based Quattro Capital Group holds an Australian Financial Services License (AFSL) and two Mayfair entities are listed as its corporate authorised representatives. Those entities trade as Mayfair 101, the head entity of the Mayfair group, and Mayfair Platinum, the brand for its new fixed income investment offerings. The sole director and shareholder of Quattro Capital is Mr Grant Gibson.”

See AFR article dated 9 January 2020:

Quattro is likely to hold Professional Indemnity Insurance, against which investors can claim.

Recourse under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA).

Important extracts re CDDA and act of grace scheme under Public Governance Performance and Accountability Act 2013: [1]

“The Commonwealth has in place two schemes whereby persons adversely affected by the actions of Commonwealth officers may receive compensation. They are the Compensation for Detriment caused by Defective Administration (the CDDA) and the act of grace scheme. The CDDA is a purely executive scheme administered by individual agencies in accordance with a Finance Circular. The act of grace scheme is statutory; the Public Governance, Performance and Accountability Act 2013 (Cth) (Public Governance, Performance and Accountability Act) determines the circumstances in which a payment can be made. The scheme is administered by the Department of Finance. The Departmental circulars setting out the schemes are reproduced in Australian Administrative Law, LexisNexis, at [8600] behind guide-card General Information.”

“One of the effects of the AAT having no greater power than the decision-maker is that it may well appear that a decision, while in accordance with the law, works an injustice to an applicant. In such cases it is not unusual for the AAT to be pressed to make a CDDA or an act of grace payment to compensate the person affected as a result of the perceived injustice. However, the AAT has no power to make such a payment: Re Hawkins & Collector of Customs (1986) 10 ALN N10 . In that case, the AAT declined even to comment upon whether the facts indicated whether the making of an act of grace payment seemed desirable.”

Timeliness of ASIC’s intervention

It has been suggested that ASIC did not act swiftly enough to protect Investors who purchased their fixed income products.

“ASIC has probed for two years from the sidelines as investment firms run by James Mawhinney have taken to the media, the conference circuit and the internet to raise $180 million of funds from ordinary Australians” (AFR 7 April 2020).

Further Comments

The powers under CDDA, Public Governance, Performance and Accountability Act 2013 (Cth) and Australian Prudential Regulation Authority (APRA) are discretionary; however, there is some recourse via the Commonwealth Ombudsmen if an act of grace payment is unfairly withheld.

[1] ‘Powers after hearing’, Lex Holcombe, Australian Administrative Law, November 2020, https://advance.lexis.com/document/?pdmfid=1201008&crid=a24638cc-2968-4755-a786-f7f985631530&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-au%2Furn%3AcontentItem%3A58Y5-6D01-JPGX-S0NM-00000-00&pdcontentcomponentid=267897&pdteaserkey=sr3&pdicsfeatureid=1517127&pditab=allpods&ecomp=_bcsk&earg=sr3&prid=498bf17e-32f9-40c3-9f34-fededecbd2fe.

Legal Precedent on which the above opinion is based.

The AAT in Re Kamil Export Co Pty Ltd & Australian Trade Commission (1986) 10 ALD 293; 5 AAR 210  was not so constrained and indicated the matters that it thought relevant to the consideration of making a payment if it were sought. In Re Michael (decd) and Repatriation Commission (2005) 89 ALD 251; [2005] AATA 1261; BC200511439  the Tribunal discussed the strength of the case for the making of such a payment and indicated to the applicant the matters on which she should seek further information before making a claim. See also Re Billeci and Secretary, Dept of Housing and Construction (1980) 2 ALN N1039; Re Harris & Department of Social Security (1993) 29 ALD 599 ; Re Bitar and Secretary, Department of Family and Community Services (2003) 73 ALD 58[2003] AATA 64BC200308862 ; Re Secretary, Department of Family and Community Services and Brunner (2003) 77 ALD 130[2003] AATA 749BC200309515 ; Re Selimovic and Secretary, Department of Family and Community Services (2003) 77 ALD 738[2003] AATA 199BC200308990 ; Re QX07/1 and Military Rehabilitation and Compensation Commission (2007) 94 ALD 750; 45 AAR 59; [2007] AATA 1172BC200702064 .

It is possible for a person to take up the issue of compensation with the agency concerned or with the Department of Finance. However, the most profitable course of action to follow in a case where it appears that an injustice flows from the application of the law is likely to be for the issue to be taken up with the Ombudsman. The Ombudsman frequently pursues the making of compensation payments in cases where a person has incurred loss unfairly. In Re Boak and Director-General of Social Services (1982) 4 ALN N239; Re Francis & Department of Health (985) 8 ALN N193 and Re Spencer-White & Department of Social Security (1992) 28 ALD 719 at 731–3; 70 SSR 998b the AAT expressly referred to this role of the Ombudsman.

Example of where an applicant failed in applying for act of grace payment under s 33 of Financial Management and Accountability Act 1997 (Cth) (Quintano v Minister for Finance and Deregulation [2014] FCA 531):

Mr Quintano was seriously injured during a fight in a nightclub, after which he successfully sued nightclub owner and was awarded damages. Unfortunately the nightclub owner and its insurer was insolvent, so he never got his payout. He applies for an act of grace payment on the basis “that both ASIC and the Australian Prudential Regulation Authority (APRA) had failed to act in any positive and meaningful sense against nightclub and its insurer despite being aware that they were unable to meet their commitments and liabilities and may also have engaged in criminal activity”.

In dismissing the application, Nicholas J held that the respondent did not fail to have regard to what Mr Q described as a ‘regulatory failure’ on ASIC and APRA’s part. On the contrary, his honour noted that the respondent made findings of fact, which were directed to the role both bodies played in relation to the nightclub owner and insurer. In relation to moral dimension of the claim, his honour refused to disturb the respondent’s exercise of discretion, writing:

“The respondent seems to have proceeded on the basis that in the absence of legal liability, there was no reason for the Commonwealth to accept any moral responsibility for what occurred such as to justify the making of an act of grace payment to the applicant. In the present case the respondent refused the applicant’s application for an act of grace payment because he considered that the applicant was essentially in no different position to any other innocent person who has been injured but cannot enforce a damages award due to the guilty party’s lack of assets or insurance cover. One may agree or disagree with that characterisation of the applicant’s plight, but it was one which the respondent was entitled to adopt and act upon when exercising the very broad discretion conferred by s 33 of the Act”.