ASIC places stop order on PDS and ads

ASIC has issued an interim stop order restraining Fawkner Property Ltd (Fawkner) to issue or transfer interests in Private Property Trust No. 20 (trading as Essential Services Trust No. 20) (the Funds), due to misleading or misleading statements in the Fund’s marketing and communications. Fawkner is the entity responsible for the Fund.

The order prevents Fawkner from offering, issuing, selling or transferring interests in the Fund based on existing product disclosure statements (PDSs). The order is valid for 21 days unless revoked earlier.

ASIC considers that Fawkner misrepresented the performance risks of the fund in its marketing by:

  • failing to adequately explain how expected returns were calculated;
  • failing to provide adequate warnings that expected performance may not be achieved;
  • using the term “Covid-proof”;
  • improperly compare the Fund to low-risk investments, benchmarks and indices; and
  • using outdated performance figures.

ASIC has identified misleading or misleading statements in Fund advertisements, including Fawkner’s website, and PDS during recent monitoring.

ASIC may consider further regulatory action regarding the Fund and Fawkner.

Background

The interim stop order against Fawkner is the result of ASIC’s ongoing monitoring to identify the use of misleading representations of performance and risk in marketing by managed funds (22-061MR). ASIC recently issued stop orders against Responsible Entity Services Limited for misleading or misleading representations in advertising (22-188MR) and design and distribution breaches (22-194MR) which were identified during this surveillance.

ASIC 234 Regulatory Guide Advertising for financial products and services (including credit): Guide to good practice (RG 234) helps fund managers and other industry participants comply with their legal obligations not to make false or misleading statements or engage in misleading or deceptive conduct.

ASIC 168 Regulatory Guide Disclosure: Product Disclosure Statements (and Other Disclosure Obligations) (RG 168) provides guidance to product issuers on preparing compliant disclosure documents that promote understanding and comparison of products. Sponsors of managed funds should ensure they are familiar with the principles and guidelines set out in RG 234 and RG168.

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