10-year, $200k battle with CBA
GREG Cadwallader has a simple question for ASIC.
Was he duped into a dodgy investment product by misleading information provided by the Commonwealth Bank, causing him to lose $200,000?
As the corporate cop responsible for policing Australia's banks, it's a question that should be right up the Australian Securities and Investments Commission's alley. But even after 10 years and a full refund of his money, he still can't get a straight answer.
"All I want is an answer," said the now 76-year-old from Logan, south of Brisbane.
"I asked ASIC 10 years ago to provide a definitive yes-or-no statement as to whether the PDS [product disclosure statement] I relied on was defective.
"I expected either 'yes, it is defective' or 'no, it is not defective'. Instead ASIC's reply was, 'Any answer we supply could be extremely detrimental to the reputation of the Commonwealth Bank.'"
In 2008, Mr Cadwallader went to Commonwealth Bank with $700,000 to invest, having sold the family home he bought in 1974. He went in seeking a good rate on a term deposit, but was "immediately steered toward a financial adviser".
The investment product he was recommended, FirstChoice Wholesale, was offered in a "moderate" and "growth" option, rated as "medium" and "high" risk respectively.
"My wife and I bought the moderate option because, according to the risk indicator, it was a 100 per cent medium-risk investment and it was recommended by the adviser," he said.
It wasn't until the GFC hit, tanking global share markets, that Mr Cadwallader realised he had been "misled".
"I complained to ASIC because I was provided a PDS that definitely did not comply with regulations - it contained misleading information," he said.
According to the PDS, the moderate option would allocate 60 per cent to "growth assets such as shares and property" and 40 per cent to "defensive assets such as fixed interest and cash", compared with an 80-20 split for the growth option.
Mr Cadwallader claims the PDS was therefore fundamentally misleading, as a product made up of more than half "growth" assets - that is, high-risk assets - cannot reasonably be marketed as "medium" risk.
"If a moderate option contains 60 per cent high-risk investments and a growth option contains 80 per cent high-risk investments, both options are high-risk," he said. "There must be a cut-off point where a medium-risk investment becomes a high-risk investment."
In its official response dated March 13, 2009, an ASIC representative said while the regulator "conducts an assessment of every complaint we receive, we do not formally investigate every matter that is brought to our attention".
"In these circumstances, and having considered the information provided by you together with the results of ASIC's confidential internal inquiries, ASIC has decided that we will not
take any further action in relation to the issues you have raised at this time," she said.
"Further, I advise that ASIC does not generally provide comment on whether a particular document or course of conduct complies with the Act, as such comment can be highly detrimental to the reputation of the entities involved, and cannot be justified in circumstances where, for various reasons, ASIC decides not to prosecute the matter."
Meanwhile, a complaint with the Financial Ombudsman Service was also dismissed, with the panel finding that both Mr Cadwallader and his wife "well knew in accepting that advice that 60 per cent of the investment funds would be invested in assets with 'exposure to high risk assets'".
Mr Cadwallader describes that as an "absurd conclusion".
"According to the PDS, the strategy for the moderate option is to invest 40 per cent in income and 60 per cent in growth assets," he said.
"How could ordinary people be expected to know that growth assets have exposure to high-risk assets?"
Mr Cadwallader said he no longer had any issue with Commonwealth Bank after being reimbursed $50,000 in 2016 and a further $150,000 last year. But he still wants answers from ASIC.
A spokesman for ASIC declined to comment, but in December last year the regulator's senior executive leader for its Assessment and Intelligence group Warren Day was quizzed by Mr Cadwallader's local member, Liberal MP Bert van Manen.
"In regard to the gentleman that have you referred to, we've had issues raised way back since 2008 in varying ways," Mr Day told a Parliamentary Joint Committee on Corporations and Financial Services.
"All of those matters that have been raised, certainly from the outset, have been reviewed and assessed and considered with our specialist team.
"If anybody raises concerns about the product disclosure statements that they've received, or that relate to the products that they've invested in, we'll look at those, assess those, consider whether there needs to be changes, whether they're misleading or deceptive, whether they tend to actually indicate incorrect information.
"So we'll look at those things and see what steps need to be taken."
Mr Day added that the "issues that have been raised by the person are well ventilated over a long period of time".
"We've made it clear to the individual concerned that, given the repeated nature of that, our resources are better used looking at new matters, not matters now that are nearly 10 years old," he said.
"In relation to that individual, we don't intend to respond any further on those matters. We've given all the assistance we can on that."
That response riled Mr Cadwallader.
"The matter was new in 2008," he said.
"If ASIC had used its resources on an investigation in 2008, when the matter was new, the bank's criminal act would have been exposed. And if there was no misleading information in the PDS, surely ASIC should have told me."
A Commonwealth Bank spokeswoman said, "The Commonwealth Bank has carefully considered the issues that Mr Cadwallader has previously raised. We believe that we have appropriately addressed Mr Cadwallader's concerns."
It comes as Commonwealth Bank attempts to calm outraged customers following revelations the details of 20 million customer accounts contained on tape drives intended for destruction were lost by a contractor in 2016.
Earlier this week, Treasurer Scott Morrison called for more heads to roll at the nation's largest bank following a scathing report by the Australian Prudential Regulation Authority, itself coming on the heels of weeks of shocking revelations in front of the Financial Services Royal Commission.
Those revelations have prompted heavy criticism of both APRA and ASIC, which has been accused of going missing in action. "I guess we can all thank God that ASIC and APRA don't regulate the aviation industry," Lindsay David from LF Economics said earlier this month. "Because if they did, there would be planes falling from the sky."