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Hi @MoonshotI exercised my democratic right to complain to ASIC about CitiCorp Nominees and the ASX and this is how it went:
This is the response I received and my reply. As you can see I am a little dismissive of ASIC in my reply.
In the complaint they ask you for permission to disclose your identity to the person you have complained about which not wanting to give them any excuse to ignore the complaint I did and in their reply they pat me on the head and say I will not hear anything further as they are bound to keep things secret from me as to what action they take.
What this is saying is we would not want the market to think less of CitiCorp Nominees just because we might make an adverse finding against them for breaching the law and their position in the market to be affected:
"Our reference: CAS-104477-L5P6S5
Dear Mr
CITICORP NOMINEES PTY LTD ACN 000 808 030
Thank you for your report of misconduct of 28 July 2022 raising concerns regarding disclosure of Citicorp Nominees Pty Ltd’s acquisition of shares in Brainchip Holdings Ltd.
ASIC values the information we receive from the public, and reports of misconduct such as yours assist us in working to build confidence in the integrity of the capital markets.
ASIC conducts an assessment of every report of misconduct we receive. The issues you have raised will receive careful consideration, and we have recorded them on our internal intelligence database.
In selecting matters for regulatory action, we consider a range of factors, including whether the misconduct report suggests any breaches of the law we administer, whether we have sufficient grounds to suspect that a breach has occurred, and whether regulatory intervention would benefit the broader community beyond the affected individuals.
Please see Information Sheet 152 Public comment which sets out the limited circumstances when we will comment publicly on our activities. These limitations are intended to protect the confidentiality of information reported to ASIC and the integrity of ASIC’s investigation and enforcement activities. For matters involving our market supervision, we are aware that any public comment may affect trading in the market, and we are committed to a fair, orderly, and transparent market.
Accordingly, ASIC does not comment on operational matters, or our assessment of information in relation to markets matters, and we are unable to provide further details about what, if any, action we may or may not take in relation to the concerns you have raised. We hope you can appreciate the reasons why we do not make such comment.
If you require any information on our role as a market supervisor, or enforcement action taken by ASIC, please visit ASIC’s website at www.asic.gov.au.
Please note that ASIC will only contact you again about your report of misconduct if we require further information or evidence to assist in our inquiries.
Yours sincerely
Kaitlyne GrahamAnalyst, Misconduct & Breach Reporting"
"Dear Kaitlyne Graham
Thank you for your email.
While I am not surprised by ASIC's approach to my complaint it does strike me as rather interesting as a retired lawyer and former police officer that despite reporting this matter firstly to the ASX and then to your office and with CitiCorp Nominees now appearing as the largest shareholder on a recently released ASX Brainchip Top 20 shareholders notice that it has still not been prevailed upon by anyone charged with legislative responsibility to file a notice under S.671 of the Corporations Act, 2001 despite the fact that it is a strict liability offence and impossible for a sophisticated corporate entity to defend.
Being just a retail shareholder and member of the public who depends upon the maintenance of a level playing field and a fair market I would have expected something a little bit more proactive from the market regulators. Obviously I was expecting far too much and it is beyond the systems ability to request that an organisation the size of CitiCorp Nominees immediately mitigate its offence and fill out a form and lodge it as required.
Kind regards"
As can be seen my complaint was actioned at ASIC in 28 July, 2022 and as expected CitiCorp Nominees has still to file a notice.
And for the record I have as promised by ASIC had no further communications.
What I should add is I first complained to the ASX and after a number of follow up enquires I received a letter saying that while there appeared to be a breach the ASX did not have the power to investigate and that if I wanted to take it further ASIC had the power to take action.
In my complaint to ASIC I also complained about the ASX for failing to bring the matter itself to the ASIC after agreeing in writing to me that there appeared to be a breach and leaving it to me. But this is another story.
Suffice to say having conducted investigations of corruption at the highest levels in my career I am disgusted.
The bottom line though is it is not ASIC or the ASX it is the Government that is responsible for this complete breach of faith with the Australian public.
However while ever former politicians from both sides of politics end up on Boards and/or as highly paid consultants to big business after they leave office nothing will happen.
My opinion only DYOR
FF
AKIDA BALLISTA
The following is the ASIC Guide. Two things to note:
1. The reasons for disclosure
2. The only way to know if a Nominee is holding as a bare trust and entitled to an exemption is to read the fine print of the agreement and speak to the parties about how it operates formally and informally because there is nothing standard about a Nominee agreement.
To assist:
“What is a Nominee Company and Why are They Used?
by Quinns Blog | Oct 12, 2020 | Accounting News, Newsletter FeaturesA nominee is a person, partnership or company that is entrusted to hold and administer shares or other property as the registered legal owner on behalf of the real owner (beneficial owner). The nominee holds the shares or property on trust and will have their name and details listed on public documentation in place of the beneficial owner who has the effective ownership and control of the shares.
The nominee is the legal owner in name only and the beneficial owner holds an equitable interest in those shares. In brief, an equitable interest is an interest in or right over property, which gives the holder of the right to acquire formal legal title from the person who is registered as the owner (nominee).
A corporate nominee is most frequently used to hold shares on trust on behalf of the beneficial owner. To ensure the beneficial owner retains control over the shares, an agreement between the nominee shareholder and the beneficial owner is executed stating that the shares or property are held on trust by the nominee for the beneficial owner’s benefit and that the nominee’s name and details will be used on documentation. An agreement can also outline specific terms, such as whether the nominee shareholder, as the registered owner of shares, can exercise any control such as voting rights. Express terms dealing with voting rights are often included and in the majority of cases, nominee shareholder does not and would not vote at all unless expressly directed or authorised by the beneficial owner.”
If you decide to read all the above you will realise that according to the ASIC ensuring disclosure is essential to allow shareholders to be properly informed so they can make proper decisions.
This idea is one that I completely agree with particularly when one of the stated reasons for using a Nominee in the above article is to hide your identity.
If this was a legitimate consideration why are all other shareholder details freely available on the share register. Why do we not get to tick a box when we buy shares that stops our name being publicly available.
In any event as all of the above makes clear simply using the term Nominee does not of itself exempt compliance with S. 671B of the Corporations Act.
This being so how can it not be reasonable for ASIC to inform this concerned shareholder after they conclude their investigation of the result.
What impediment would doing so have on the operation of the fair market to inform this concerned shareholder that CitiCorp Nominees is a fair and noble company acting within the letter and spirit of the law? Would not it raise my confidence that the market is being conducted fairly in the interests of all participants?
My opinion only DYOR
FF
AKIDA BALLISTA
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