The Australian Prudential Regulation Authority (APRA) today announced it has accepted an enforceable undertaking from former Trio Capital Limited (Trio) director John Godfrey. Trio was formerly the licensed trustee of five registered superannuation entities as well as the responsible entity of a managed investment scheme known as the Astarra Strategic Fund (the ASF), a fund of hedge funds.
Mr Godfrey was a non-executive director of Trio from February 2005 until June 2007. He was also Chairman of the Board from June 2005 to February 2007.
Mr Godfrey is the sixth Trio director to give an enforceable undertaking to APRA. His is also the first enforceable undertaking accepted by APRA from an individual who left the Trio board prior to its collapse in 2009.
Mr Godfrey has undertaken not to act as a trustee or as a responsible officer of a body corporate that is a trustee, investment manager or custodian of an APRA-regulated superannuation entity without obtaining APRA’s prior written consent. Mr Godfrey, aged 68, has acknowledged he has no present or foreseeable intention to request APRA’s consent to return to these senior roles in the superannuation industry.
Mr Godfrey has acknowledged APRA’s concerns that he failed to carry out his duties properly as a director of a superannuation trustee. APRA’s concerns included that Trio:
- failed to redeem existing investments in the Exploration Fund Limited (EFL), an offshore hedge fund, and made ongoing investments in the EFL, given:
- there was a lack of arms’-length arrangements in place as the EFL was a related party to Trio;
- the investment risks associated with the EFL;
- Trio had failed to comply with the provisions in its Overarching Investment Policy dealing with hedge fund and related party investments; and
- failed to redeem existing investments in the ASF and made ongoing investments in the ASF, given there were similar issues to those associated with the EFL investment. Trio failed to adequately consider counterparty risk, the risks of investing in offshore hedge funds and the risks associated with the investment structure of the ASF through Deferred Purchase Agreements.
The Trio superannuation entities’ investments in the ASF and EFL have not been able to be redeemed and ACT Super Management Pty Limited (ACT Super), the Acting Trustee appointed to the Trio superannuation entities, has determined that the funds have been lost due to fraud or theft.
Mr Godfrey accepts that, with the benefit of hindsight, and with what has since transpired, he should have acted differently in relation to APRA’s concerns, and genuinely regrets the consequences that arose.
APRA Deputy Chairman Ross Jones said the acceptance of the enforceable undertaking was an appropriate resolution of the matters between Mr Godfrey and APRA.
‘APRA’s investigation in relation to Trio is continuing. APRA intends to take action against any former Trio directors who had left the Trio Board before its collapse in late 2009, who have failed to meet the high standards expected of them as superannuation trustee directors and have not acted in the best interests of members.’
A copy of Mr Godfrey’s enforceable undertaking can be downloaded on APRA's website.
APRA has previously accepted enforceable undertakings (EUs) from the following former Trio directors who have undertaken not to act as a trustee or as a responsible officer of a body corporate that is a trustee, investment manager or custodian of an APRA-regulated superannuation entity:
- Natasha Beck — EU announced on 4 July 2011 for a period of four years;
- Rex Phillpott — EU announced on 8 September 2011 for a period of 15 years;
- David Andrews — EU announced on 8 September 2011 for a period of 10 years;
- Keith Finkelde — EU announced on 19 September 2011 for a period of six years; and
- David O’Bryen — EU announced on 3 November 2011 for a period of five and a half years;
On 13 April 2011, in response to an application by ACT Super and on the recommendation of APRA, the Assistant Treasurer, the Hon. Bill Shorten MP, announced his decision to grant approximately $55 million in financial assistance to over 5,000 members of the Trio superannuation entities as a result of funds being lost to fraud or theft.
On 17 December 2009, APRA suspended Trio as the trustee of its four superannuation funds and one pooled superannuation trust, and appointed ACT Super, a subsidiary of McGrathNicol, as Acting Trustee to manage these five entities. APRA suspended Trio and appointed ACT Super as a result of numerous breaches of Trio’s licence conditions and it not being able to satisfy APRA’s concerns regarding the valuation of superannuation assets.
APRA commenced its investigations in relation to the Trio superannuation entities in October 2009. The Australian Securities and Investments Commission (ASIC) has also been conducting a concurrent investigation into Trio Capital. Both agencies have been cooperating with each other with respect to their investigations.