Sam worked for many years as a life insurance agent selling life insurance policies for Eternal Life Ltd, a large insurance company. Following a car accident, Sam has had 12 months off work and has now decided that he will not be returning to work with Eternal Life. As his health improves, Sam believes that he might earn some much needed income by issuing interests in a new investment management scheme which he registers with ASIC. Sam has worked often with wealthier experienced investors and his registered scheme will target these investors.
Sam asks his good friend and neighbour Pam, who is well known in his suburb, to tell people that he is seeking new clients. He also asks Pam to let it be known that he has enjoyed a successful career in this field, which is certainly true. Sam works from home and sees only a handful of quite wealthy, well-informed, clients when it suits him. His work requires only minimal advice to his clients about their interests in the registered scheme. He issues interests his registered scheme from time to time.
Sam has no licence and does not work as an authorised representative for any established AFSL licensee. Business begins to grow and Sam sees new business opportunities in advising more clients with respect to personal superannuation policies and their investments in the shares and debentures of publicly listed corporations.
1. Is Sam providing a financial service? What is the relevant law and how would this apply to the facts of this problem?
2. Is Sam carrying on a financial services business? What is the relevant law and how would this apply here?
3. Does Sam need to obtain an Australian Financial Services Licence (AFSL)? If so, what would be the three most important obligations he will need to meet in the circumstances of this case?