Westpoint FAQs 
Slater & Gordon will be your lawyer in relation to your Westpoint claim. We will take your instructions as required, provide you with legal advice, seek to negotiate a settlement on your behalf, and run the Court proceedings.
Slater & Gordon will owe fiduciary duties to Westpoint investors that enter into the Retainer Agreement.
Under the IMF Funding Agreement ("IMF Agreement"), IMF will pay Slater & Gordon's legal fees to act on your behalf. However, Slater & Gordon do not act as lawyers for IMF, and will only act in the individual and collective interests of the Westpoint investors that retain us.
IMF will perform or assist in a variety of non-legal tasks such as document collection, database management, and investigative work. IMF will not be providing legal advice to Westpoint investors.
As a result of these shared responsibilities - IMF will assume responsibility for sending some of Slater & Gordon's general correspondence to Westpoint investors. This is one of the ways in which we are seeking to minimise the costs incurred in this litigation, and it does not effect the solicitor/client relationship between Slater & Gordon and those investors that retain us to act on their behalf.
No. Under the IMF Agreement and the Slater & Gordon Retainer ("S&G Retainer") you will not have to pay anything to either IMF or Slater & Gordon unless your legal action is successful.
While it is too early to state with certainty, it is likely that a separate action will need to be brought against each financial planner.
It is possible that these court proceedings will be brought in the form of a class action (also known as a representative proceeding). This is where an individual or a small representative sample of individuals commences litigation on behalf of everyone who has invested in similar circumstances.
It is more likely that each proceeding will be in the form of a group action in which each investor is named individually.
You won't have to pay anyone anything in relation to any legal proceedings in which you are involved.
The IMF Agreement and S&G Retainer have been structured so that you can seek to recover compensation without exposing yourself to any further risk.
Adverse Costs
In court proceedings such as these, at the end of proceedings it is open to the Court to order the loser to pay the winner's costs. In an action such as this, this amount is likely to be in the hundreds of thousands of dollars.
Under the IMF Agreement, IMF will indemnify you against any adverse costs orders. In other words, if for any reason you are ordered to pay adverse costs to the Defendant, then IMF will make that payment for you.
- Disbursements
Even at an early stage it is clear that the Westpoint litigation will be very expensive. As part of its commitment to pay legal costs, IMF will pay all out of pocket expenses that are incurred in the running of the claim.
This includes retaining barristers and experts who will cost hundreds of thousands of dollars.
- Security for Costs
Many of the actions will be brought on behalf of small proprietary limited companies that have been established by individuals and families to act as the trustees of their self-managed superannuation funds.
Because these 'trustee companies' often have no assets, the Courts will often require them to provide "security for costs". In a case such as Westpoint, this would require an investor (who has already lost a considerable amount of money) to make an upfront payment of a considerable amount of money that would be held by the Court and used to cover any adverse costs order.
Under the IMF Agreement, if you are required to pay security for costs, then they will make that payment or provide the necessary guarantees on your behalf.
If you are successful, then under the IMF Agreement and S&G Retainer payments will be made from the total amount in the following order:
- Slater & Gordon's Legal Costs
- IMF's Commission
- Compensation to investors.
It is important to note that if you retain Slater & Gordon, then we will not commence any litigation on your behalf without first providing a letter of advice. This will address a variety of factors, including:
- The basis of our claim against the financial planner and any other parties
- Our investigations into the insurance / assets of the defendants
- A preliminary assessment of your prospects of success
If you have registered with either Slater & Gordon or IMF and provided details of your financial planner, then preliminary investigations have commenced against your financial planner.
The primary factors that will determine whether action will be taken against your financial planner are:
- How many clients we have with claims against the planner.
- This litigation is likely to be very expensive, and it will be better for investors if costs are spread over the largest possible number of people.
- The more clients we have, the easier it will be to construct and assess the claim based on documents and oral instructions.
- Whether your financial planner has sufficient assets to meet all or at least the majority of claims.
We note that the above are designed to ensure that investors receive the largest possible amount of compensation. While we do not currently envisage any problems in establishing that the financial planners have breached their duties, it is possible that issues might arise. We will keep you informed of any issues that emerge.
It is impossible to say with any certainty at this point. Any group that promises a return of 100% of your investment should be treated with the utmost suspicion.
Our fundamental objective is to obtain as much compensation for clients as quickly as possible. As a matter of principle, we therefore will not advise clients to sue their financial planner when the legal costs and commission would subsume the compensation.
Investors will not receive 100% of their investment back. How much investors will receive depends on the complexity and length of the litigation. We believe that in the event of a successful outcome, and assuming that the defendant has assets, investors will receive between 50 and 70% of their investment in their pockets.
At all times, investors will receive independent, impartial and professional legal advice and representation throughout the litigation and settlement process.
We will provide you with our advice as to why we do not recommend you proceed with your claim. You will not have to pay anything (to IMF or Slater & Gordon) in respect of the advice you have received to that point and you will be free to pursue other avenues to obtain compensation.
We will represent the interests of those investors who become our clients by signing and returning the S&G Retainer. Only our clients will receive legal advice in relation to their claim, and be able to participate in the group actions foreshadowed above.
FICS is a private company that has been established by the Financial Planning industry to handle complaints against Australian Financial Services License (AFSL) holders.
Claims can only be brought against current AFSL holders and their authorised representatives. Importantly, if the entity that gave you advice has changed its name and obtained a new license, FICS will not hear your claim. This potentially effects a large number of investors.
Complaints relating to amounts over $30,000 are heard by a panel comprised of a financial planning industry representative; a consumer representative and an independent member.
The panel is appointed by FICS.
As there is no automatic right to legal representation, investors will be required to make their own submissions about why they are entitled to compensation.
Because FICS is not a court or tribunal they have no traditional enforcement powers. If a financial planner refused to comply with FICS and pay you compensation, then FICS could either 1) expel the financial planner; or 2) bring proceedings on your behalf for 'specific performance' in the Supreme Court of your State or Territory.
Any decision by FICS (whether for or against you) is only "binding" on the financial planner. However, although you would then be free to pursue legal action against your financial planner, we note that we can provide no guarantee that we would be able to act for you.