CONTRACT – construction – where the applicant and group members were authorised representatives of the respondent (AMPFP) – where the contracts between the applicant/group members and AMPFP included a buyer of last resort (BOLR) policy that provided for AMPFP to buy back the register rights of the authorised representative at a multiple of 4.0x ongoing revenue – where AMPFP amended the BOLR policy to change the multiple from 4.0x to 2.5x (for ongoing revenue other than grandfathered commission revenue) and a lower multiple for grandfathered commission revenue – whether the changes to the BOLR policy were authorised by the amendment provision for legislation, economic or product changes – whether there was an “economic change” within the meaning of the policy – whether there was a “legislation change” within the meaning of the policy – whether any such changes rendered any part of the BOLR policy “inappropriate” – whether the changes to the policy were proportionate – whether AMPFP satisfied requirement of consultation with financial planners association – held: changes to the BOLR policy were ineffective
CONSUMER LAW – unconscionable conduct – where the applicant and group members were authorised representatives of AMPFP – where the contracts between the applicant/group members and AMPFP included a BOLR policy that provided for AMPFP to buy back the register rights of the authorised representative at a multiple of 4.0x ongoing revenue – where AMPFP amended the BOLR policy on 8 August 2019 to change the multiple from 4.0x to 2.5x (for ongoing revenue other than grandfathered commission revenue) and a lower multiple for grandfathered commission revenue – where a sample group member (WealthStone) had lodged a BOLR application before 8 August 2019 with an exercise date after 8 August 2019 – where AMPFP purported to apply the 8 August 2019 changes in calculating the BOLR benefit payable to WeathStone – where AMPFP included a release in draft buy-back agreement – where WealthStone requested removal of the release – where AMPFP refused to remove the release – whether AMPFP’s conduct in procuring the release was, in all the circumstances, unconscionable – held: AMPFP’s conduct in procuring the release was unconscionable
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0741
For more information, see the original judgement.
