The Administrative Appeals Tribunal (ATT) has upheld ASIC's ban of former Commonwealth Financial Planning (Commonwealth FP) adviser Don Nguyen.
In its determination, ATT senior member Geri Ettinger said the tribunal "affirms" the decision under review, deciding that the period of the banning order of seven years commences from 10 March 2011, the date on which Nguyen was given ASIC's decision.
"I am also mindful that banning for less than three years would be appropriate where there is some carelessness or inadvertence in conduct which has led to problems, and where there is an indication of clear intention to comply with legal obligations in demonstrated behaviour," Ettinger said in the ATT judgement dated March 14.
"I cannot see that Mr Nguyen's behaviour fits into this category as he continued to maintain for example, as noted above, that he had not failed to comply with any financial services law, and continued to blame the GFC [global financial crisis] and the share market, rather than his advice on investments for the losses his clients incurred."
Ettinger said the ATT is "satisfied" that Nguyen's conduct, whilst in breach of various sections of the Act, did not involve any misappropriation of client funds.
She said while his conduct constituted "systematic failure of, and disregard for, compliance with procedures and documentation, and advice contrary" to personal circumstances of clients, it was not on such a scale such as to attract a ban of 10 years or permanent banning.
Last year, the corporate regulator handed Nguyen a seven year ban from providing financial services.
After appealing to ATT for a review of ASIC's decision, the ATT agreed that a seven-year ban was appropriate for Nguyen's failure to company with financial services laws.
"ASIC is committed to taking action against critical gatekeepers such as advisers who do not meet their responsibilities," ASIC Commissioner Peter Kell said in a statement.
Commonwealth FP is undergoing a compensation process for clients who lost money as a result of advice received from Nguyen and agreed to an enforceable undertaking with ASIC to review its risk management framework.
"We're continuing to implement our programme in line with our agreement with ASIC," a Commonwealth FP spokesperson told InvestorDaily.
ASIC is also continuing to investigate into the conduct of several other former Commonwealth FP advisers.
In March 2011, ASIC disqualified Nguyen from providing financial services after an investigation found that he failed to comply with several financial services laws.
