In a decision handed down late last week, the AAT granted a “stay” to David Wilkins – an authorised representative of boutique AFSL Wilkins Financial Planning – preventing a ban issued by ASIC in September 2013 from being enforced.
The stay allows Mr Wilkins to continue trading until the tribunal hears his appeal case in March 2015.
“It takes little imagination to appreciate that significant harm might be done to Mr Wilkins’ economic interests, and that of his business, were a stay not to be granted,” said AAT deputy president P E Hack SC.
However, Mr Hack held that Mr Wilkins must comply with certain conditions, including informing all existing and future clients in writing of the banning order and making the ASIC decision available upon request.
In addition, Mr Wilkins’ advice must be reviewed by an independent expert from a list of approved providers and he will not be allowed to advertise his financial services.
While Mr Hack could not rule on whether the appeal would be successful, he said Mr Wilkins had “demonstrated that he at least has an arguable case”.
According to the AAT decision, ASIC found Mr Wilkins had engaged in misleading and deceptive conduct in explaining the risk of options trading to his clients.
He was also found by ASIC to have given investment advice that was not appropriate to five clients and to have supervised an employee involved in the same breaches, the decision stated.
By contrast, Mr Wilkins argued that ASIC focused on isolated representations rather than the totality of advice provided, according to Mr Hack.
“His case, as I apprehended it, is that when the advice is considered in context it is not misleading or deceptive,” Mr Hack said.
If the review by the AAT upholds ASIC’s original findings, the ban will be reinstated.
