Question
ABZ Bank (ABZ), an ADI and AFS Licensee, operates through 700 branches across Australia. Z Super is a superannuation product issued and promoted by Zpac
ABZ Bank (ABZ), an ADI and AFS Licensee, operates through 700 branches across Australia. "Z Super" is a superannuation product issued and promoted by Zpac Super, a wholly-owned subsidiary of ABZ. ABZ runs an aggressive marketing campaign to distribute "Z Super" through its retail branch network. Any branch staff who sells "Z Super" is paid a substantial commission. "Z super" is sold to customers by ABZ's branch staff who are authorized to provide general advice to retail customers and to assist retail customers to apply for superannuation products. The distribution process developed and implemented by ABZ involved the following steps:
- Firstly, the branch staff member asks the retail customer to fill in a questionnaire of 25 questions (called '1-25 review') on the financial situation, needs and circumstances of the retail customer.
- Secondly, the branch staff member asks whether the retail customer would like to be provided with information about "Z Super".
- Thirdly, if the retail customer agrees, the retail customer is provided with a detailed Product Disclosure Statement and brochure. The branch staff also provides a quick appraisal of benefits to invest in "Z Super" and provides them with a general advice warning.
- Fourthly, the branch staff obtains (1) signatures on blank forms for 'Z Super' and (2) a letter of authorization for cancelling the existing superannuation account.
The application will only be proceeded upon confirmation from the retail customer through an email or telecall. ASIC's surveillance on branch sales of "Z Super" has revealed that 45-50% of customers opted for "Z Super" soon after the '1-25 review' on the same day. ASIC is concerned about the promotion of "Z Super" through branches and initiates an investigation. You are employed in the legal division of ABZ and are asked to review if the sale and distribution of "Z Super" breach any provisions of Chapter 7 of the Corporations Act, 2001 (Cth). You are specifically asked to include a detailed analysis of whether ABZ's staff comply with the best interests duty and related obligations under C7.7A of the Corporations Act, 2001 (Cth).
identify if the given scenario describes any breaches of financial services laws.
- Whether a financial product, financial product advice and financial service is provided?
- Whether the financial product advice provided is general advice or personal advice?
- Whether the financial product advice is given to a retail client?
- Whether ABZ's branch staff comply with all C.7.7A obligations?
- Whether ABZ is liable for breached provisions relating to conflicted remuneration?
- Whether ABZ's branch staff's conduct could be classified as an unconscionable conduct?
- Whether ABZ is liable under s.961K for breaches of ABZ's branch staff?
- Whether ABZ is liable under s.961L for failing to take reasonable steps to ensure its representative comply with C.7.7A obligations?
- Whether ABZ is liable for breach of general licensee conditions?
- Whether ABZ breaches any provisions under P.2 D.2 of ASIC Act?
- What are the legal remedies (statutory/commonlaw/code of ethics) available for the retail client?
12. Case laws relevant to the scenario?
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