For many victims of financial disputes, it can be a daunting process to navigate recovering your funds. You may have tried to resolve the issue with the financial provider and have had no response or success.
Where do you go next?
The Australian Financial Complaints Authority (AFCA) is a non-government dispute resolution organisation providing free, fair and independent help with disputes between consumers and financial providers. It is compulsory for all Australian Financial Services Licence and Australian Credit Licence providers to be members of AFCA. To have a complaint considered by AFCA it has to be within six years after you first became aware of the loss. With an exception of the current one-year window to consider complaints dating back to 1 January 2008. AFCA is only allowed to accept legacy complaints until 30 June 2020.
At the SR Group, we understand the experience of being forced into bankruptcy is highly stressful for people. It involves court proceedings, substantial costs, the need for legal advice and very often the fear of losing the family home. A person can be bankrupted on a debt as little as $5,000. This amount can balloon to many thousands after legal costs and fees are added. The following example is from the casework of Consumer Action Law Centre and involved a client who had an initial credit card debt of around $5,000. The amount outstanding 18 months after the forced bankruptcy was around $60,000. This how the debt can accumulate:
Source: Consumer Action Law Centre July 2019 Article: ‘Who is making Australians bankrupt?’
This can mean that a small credit card debt could lead to the loss of the family home. Many people being made bankrupt are in financial hardship and could make a repayment arrangement to pay their debts if given the opportunity. Forced bankruptcy should be a last resort. SR Group seeks to avoid this burden for our clients. Constructively working with people in financial hardship gives them an opportunity to repay their debts. Extra time can mean the person is able to improve their financial position, for example, to recover from an illness or get back to work. In October 2018 alone, there were 265 filings for bankruptcy in total. The biggest percentage of filings involved individuals and various companies suing over debts. The next largest percentage of filings is the Australian Taxation Office (15%), followed by publicly listed debt collector, Lion Finance (12%), and then various corporate bodies (strata plans/owners corporations) (12%).
Source: Consumer Action Law Centre July 2019 Article: ‘Who is making Australians bankrupt?’
SR Group achieves success with creditors through lump-sum settlements, mediation and negotiation.
Credit Negotiation Case Study
We provided advisory services to the director of a company that provided financial solutions to businesses who sold small ticket items. Our client’s company had operated successfully for several years before a combination of environmental and market conditions caused a significant downturn in revenue. After numerous attempts to revitalise the business and diversify, and in keeping with his directorship duties, our client made the decision to wind up his company and appoint a liquidator.
After appointing the liquidator, our client found employment in a managerial role in a different company. While, the salary of the new role covered his living expenses, it did not leave enough money for him to meet his monthly creditor repayments, which were in substantial arrears. However, our client did not want to abrogate his personal creditor responsibilities and take the personal insolvency route.
ACTIONS TAKEN TO ASSIST & OUR RESULT
We acted on behalf of our client in aiming to settle each of his eight debt collectors (St. George, ANZ, Visa, NAB, Westpac, Prospa, Baycorp, Citibank) for the lowest possible amount on the grounds of financial hardship. A family member of our client generously offered a small pool of funds to help settle his creditors. Overall, we were able to reduce our client’s debt from $261,000 to $84,000, a reduction of 68%. Our client now only had to pay 32 cents in the dollar, which he had to do immediately upon receipt of each offer in the form of a discount lump-sum settlement.
The most prolific user of the bankruptcy system is the Australian Taxation Office (ATO), which applied to make 543 people bankrupt in the past financial year of 2018-19. This number, however, was significantly lower than in the past three financial years. In the 2015-16 financial year the ATO applied to the Federal Court to make 1,215 people bankrupt. This fell to 1,061 people in 2016-17. In 2017-18 that number had fallen further to 833.
SR Group helps assist clients with ATO issues through seeking:
The Commissioner of Taxation can release a person from a tax debt if making the payment would cause serious hardship. Serious hardship is defined as where the payment of a tax liability would result in a person being left without the means to afford basics such as food, clothing, medical supplies, accommodation or education. If the serious hardship standard is met (as determined by the ATO), then the person may be able to be released from all or part of the tax debt. Through our experience it must be noted that serious financial hardship can be a difficult standard to meet.
SR Group has a proven track record in negotiating with the ATO to reach a mutually agreeable resolve.
ATO Case Study
An established travel agency established in 1998 incurred financial distress, due to ongoing family health issues over a 10-month period. This difficult period resulted in neglect of the business, which ultimately led to a winding up application from the Australian Taxation Office (ATO).
ACTIONS TAKEN TO ASSIST & OUR RESULT
On behalf of our client, we negotiated with the ATO through various correspondences and reached a settlement equivalent to 48% of the initial debt.
We achieved a full remission of interest and penalties on the debt, as well as establishing a monthly payment plan over two years to settle the debt, allowing the client to effectively manage their cash flow as the business got back on its feet.
“I recently used the services of the SR Group and cannot recommend them highly enough. In particular I dealt with the Client Relations Manager Mandana Missaghi, her professionalism, diligence and empathy helped me through a particularly difficult situation. Mandana has a very understanding and positive attitude which I really appreciated through all our dealings. The SR Group thoroughly investigated my situation, guided me through the available options & then negotiated on my behalf to reach an agreeable solution. I cannot thank the SR Group enough for their assistance & advice.”
This report reviews the applications in the Federal Court of Australia to make people bankrupt over the past four financial years (2015-16, 2016-17, 2017-18 and 2018-19). The report was put together after financial counsellors and community lawyers noticed that some creditors regularly applied to bankrupt people while other creditors did not.
The experience of being forced into bankruptcy is highly stressful for people. It involves court proceedings, substantial costs, the need for legal advice and very often the fear of losing the family home.
There are two problems with the current system of bankrupting someone. First, legal and other costs are continually added throughout the process, making it less and less likely that the debtor will be able to make a repayment arrangement to stop being declared bankrupt.
Second, a person can be bankrupted on a debt as little as $5,000. This can mean that a small credit card debt could lead to the loss of the family home. Using bankruptcy as an enforcement mechanism is particularly problematic for people on low incomes who own their homes. It is poor public policy when people become homeless over relatively small debts.
Financial counsellors and community lawyers also report that many people being made bankrupt are in financial hardship and could make a repayment arrangement to pay their debts if given the opportunity. Given that some creditors are not using, or rarely using the bankruptcy process, while others use it extensively, it raises the question as to why there are such different practices.
This report aims to change the way creditors use bankruptcy as a way to enforce a debt. Forced bankruptcy should be a last resort.
SR Group assists many companies and individuals so that it does not end in bankruptcy.
To view the report click here
We are excited to announce we are moving office as of Monday 22 July 2019.
Our new office and postal address will be Suite 2 Level 10 52 Phillip Street Sydney.
First Federal Budget in the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
2019-20 Federal Budget
Last week saw the first Federal Budget in the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The Federal Government announced they will provide $606.7 million over five years in response to the Royal Commission:
Use of Funding Amount
$2.6 million - Designing and implementing an industry-funded compensation scheme of last resort (CSLR) for consumers and small businesses.
$2.8 million - Providing the Australian Financial Complaints Authority (AFCA) with additional funding to help establish a historical redress scheme to consider eligible financial complaints dating back to 1 January 2008.
$30.7 million - Paying compensation owed to consumers and small businesses from legacy unpaid external dispute resolution determinations.
$404.8 million - Resourcing the Australian Securities and Investments Commission (ASIC) to implement it new enforcement strategy and expand its capabilities and roles in accordance with the recommendations of the Royal Commission.
$145.0 million - Resourcing the Australian Prudential Regulation Authority (APRA) to strengthen its supervisory and enforcement activities which will support its response to key areas of concern raised by the Royal Commission, including with respect to governance, culture and remuneration.
$7.7 million - Establishing an independent financial regulator oversight authority, to assess and report on the effectiveness of ASIC and APRA in discharging their functions and meeting their statutory objectives.
$1.0 million - Undertaking a capability review of APRA, which will examine its effectiveness and efficiency in delivering its statutory mandate, as well as its capability to respond to the Royal Commission.
$11.2 million - Establishing a Financial Services Reform Implementation Taskforce within the Treasury to implement the government’s response to the Royal Commission, and co-ordinate reform efforts with APRA, ASIC and other agencies through an implementation steering committee.
$0.9 million - Providing the Office of Parliamentary Counsel with additional funding for the volume of the legislative drafting that will be required to implement the government’s response to the Royal Commission.
The SR Group represents a group of 116 individuals and entities, each of whom was a client of disgraced Sydney based financial adviser. The financial adviser advised each of their clients to invest in the a managed investment scheme, without regard to each individual’s needs, wants or desired investment outcomes. The financial adviser did so without disclosing their close relationship with the managed investment scheme or the exorbitant commissions they received for promoting the scheme.
Read more about our case study
On Monday 4 February 2019, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry release its final report containing 76 Recommendations. At 4:20pm, Treasurer Josh Frydenberg held a press conference announcing that the Government had agreed to adopt 75 of the 76 recommendations made by the royal commission, opting against fully implementing a suggested crackdown on mortgage brokers.
The most important recommendation for our clients is 7.1 – compensation scheme of last resort. The Government has agreed to this recommendation by stating:
“For the first time the Government will establish a compensation scheme of last resort to ensure that consumers can have their case heard and be confident that where compensation is owed it will be paid. This will be a scheme paid for by industry reflecting their obligation to right their wrongs.”
ASIC has largely won a landmark case against Melbourne businessman Bill Lewski, former federal health minister Michael Wooldridge and other directors of failed property group Prime Trust, with the High Court ruling the men had breached their duties as directors. The High Court found it “cannot ignore the injustice caused to members by an amendment that permits $33 million of their equity to be paid away without authority”. The Federal Court is to reassess the penalties and disqualification periods for the directors.
Royal Commission into Misconduct in the Banking, Superannuation and Financial Services releases interim report.
The SR Group, along with millions of other Australians, have eagerly awaited the report by Commissioner Kenneth Hayne QC, and expect to see blistering criticism of a number of major financial institutions and financial services providers. We also expect, and certainly hope for, the recommendation of new legislation and safeguards to prevent the recurrence of the misconduct highlighted in the Commission. Reading the Interim Report it is no surprise this will be costing the banks billions of dollars in rectifying their history of bad behaviour. Here's a look at what the figures could potentially be.
In 2017, Australian’s lost A$31.3 million to investment fraud schemes, per the May 2018 report by the Australian Competition and Consumer Commission (ACCC). This figure is almost certainly an under-representation on the total amount lost, as investment fraud is one of Australia’s least reported crimes, mostly due to shame or embarrassment of the victims. But don’t be embarrassed, investment frauds are becoming more sophisticated and harder to recognise, and with over 200,000 reports of scams last year, you are certainly not alone.
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