Middleton, Tom (2022) ASIC and Private Litigants – Enforcement of Statutory and Fiduciary Duties of Directors, Financial Advisers and Corporate Trustees – Statutory and Equitable Remedies – Suggested Reforms. Company and Securities Law Journal, 39 (3). pp. 171-193.

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Abstract

ASIC should be given an express power to investigate suspected breaches of fiduciary duties by directors, financial advisers and corporate trustees, and a discretionary power to seek any equitable remedies for the beneficiaries of the fiduciary relationship who suffer losses because of fiduciary breaches. There should also be greater harmonisation of the relevant provisions of the Corporations Act, ASIC Act and the Superannuation Industry (Supervision) Act and the relevant equitable rules. The reforms would reduce the risk of any duplication of litigation by ASIC and private litigants in relation to the same factual circumstances. Harmonisation would also avoid the current costly, time-consuming and inconsistent “case by case” approach to resolving regulatory issues. The reforms would improve the range of enforcement options available to ASIC and would assist it to achieve its regulatory objectives. The reforms would help ensure the public receive advice and services that promote their best interests and financial wealth.

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