Once hailed as a superannuation guru, high-profile financial planner Sam Henderson (pictured) has been charged by the corporate watchdog with alleged offences that could see him face a long jail sentence or millions in fines if found guilty.
In July last year, the Australian Securities and Investments Commission (ASIC) banned Henderson from providing financial services for a period of three years, concluding he had failed to act in the best interests of his clients or provide appropriate advice.
Now ASIC is taking Henderson to court over false representations that he had a Master of Commerce during his time as a senior financial advisor and director of Henderson Maxwell Pty Ltd.
Henderson has been charged with three counts of dishonest conduct and two counts of giving a disclosure document knowing it to be defective.
The corporate regulator alleges he engaged in dishonest conduct when he made false representations that he had a Master of Commerce:
- in PowerPoint presentations he gave to prospective clients from 2010 to 2016;
- on the Henderson Maxwell website from October 2012 to August 2016; and
- in Henderson Maxwell brochures distributed between 2013 and 2016 and in an Information Memorandum dated May 2011.
Each dishonest conduct offence under the Corporations Act carries a maximum penalty of 10 years' imprisonment or a fine of up to 4,500 penalty units. At 2016 rates this would equate to a maximum of $810,000 per offence.
ASIC also alleges that Mr Henderson breached s952D(2)(a)(ii) of the Corporations Act in 2014 and 2016 by giving at least two clients a Financial Services Guide, containing the false representation that he held a Master of Commerce (Financial Planning).
Each of these offences carries a maximum penalty of five years' imprisonment and/or a fine of up to 200 penalty units, roughly equating to $34,000-36,000 each in this case if the defendant is found guilty.
The Commonwealth Director of Public Prosecutions is prosecuting the matter, and the charges against Henderson were mentioned at the Downing Centre Local Court in Sydney on 9 June.
Henderson did not enter a plea and the case will come before the court again on 4 August 2020.
Bad advice just a "draft"
In May 2018 Henderson faced the Royal Commission, where one of his former clients Donna McKenna gave testimony claiming he had given "risible" advice.
Had McKenna taken Henderson's recommendation to establish a self-managed super fund (SMSF), she would have missed out on around $500,000 by accessing her funds too early.
Henderson had reportedly persisted in promoting the benefits of SMSFs to McKenna despite her lack of interest.
The commission heard he did not do any research into superannuation funds for McKenna or investigate whether managed accounts other than the Henderson Maxwell managed account might be more suitable given her circumstances.
In January 2017 Henderson would later admit his advice would have led to half a million dollars in losses for the client, but claimed his statement of advice was only a draft and he offered McKenna a refund of her advice fees.
One of the financial planner's employees also impersonated McKenna when calling her super fund, although Henderson told the commission he was not aware of the action at the time and that he was disappointed in the conduct.
Today ASIC announced it was taking the case further, noting Henderson had been charged with three counts of dishonest conduct and two counts of giving a disclosure document knowing it to be defective.
"I do not accept that a financial adviser can avoid responsibility for defective advice by claiming that the advice is a 'draft'," Kenneth Hayne said in an interim report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
"Mr Henderson's recommendations to Ms McKenna if accepted, would have increased the fees payable to his companies. The investigating officer of the FPA (Financial Planning Association of Australia) concluded that there was a strong and reasonable inference that Mr Henderson's conduct stemmed from a lack of objectivity or from a conscious decision to prefer his own interests to those of the client.
"It is unacceptable for an employee of a financial services entity to impersonate a client in a telephone call. As Mr Henderson accepted in his oral evidence (albeit not in his submissions in response to this case study), the employer, Henderson Maxwell, must take responsibility for these actions of its employee."Never miss a news update, subscribe here. Follow us on Facebook, LinkedIn, Instagram and Twitter.
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