ASIC has appealed part of the decision of the Federal Court in ASIC’s case against ACBF Funeral Plans Pty Ltd (ACBF) and its parent entity Youpla Group Pty Ltd (Youpla Group) handed down on 5 September 2023 (refer 23-244MR).

ASIC had alleged that ACBF represented it was owned or managed by Aboriginal persons when that was not the case. At first instance, the Court found such representations were made but was not satisfied those representations were false. ASIC is appealing that finding.

ASIC Deputy Chair Sarah Court said, ‘ASIC has appealed this decision because we are concerned that representations were made to First Nations people that ACBF and its funeral plan had Aboriginal ownership and management which, in ASIC’s view, had the effect of deceiving many Aboriginal consumers into buying the plan”.

The appeal will be heard by the Full Federal Court on a date to be determined.

Background

In its’ original proceedings filed in October 2020, ASIC alleged four misrepresentations by ACBF and involvement in those misrepresentations Youpla Group, that:

1. ACBF Funeral Plans was owned or managed by an Aboriginal person or persons;
2. the ACF Plan had Aboriginal community approval;
3. the ACF Plan was more beneficial to Aboriginal consumers than other funeral insurance products generally available at the time; and
4. plan holders would receive a lump sum payment of their chosen benefit amount, when in reality they would only be reimbursed for funeral related expenses up to the benefit amount upon production of proof that those expenses had been incurred.

On 5 September 2023, judgment was delivered in which ACBF was found to have made false and misleading representations in relation to the fourth representation only. The judge imposed a $1.2million pecuniary penalty on ACBF (which ASIC is not to enforce without leave of the Court).

ASIC’s remaining allegations, including the ‘involvement’ allegation against Youpla Group, were dismissed.

ASIC is not appealing the Court’s findings in relation to the remaining two representations or the Court’s findings in relation to Youpla Group.

Editor's Note 1:

The matter is next due for a hearing on 19 February 2024.

Editor's Note 2:

ASIC’s appeal was heard on 19 February 2024 and the decision of the Appeal Court will be heard at a date to be fixed.