R and N Hunter Pty Ltd ATF The Hunter Family Superannuation Fund v Count Financial Limited

This page explains the Federal Court's published judgment and orders in R and N Hunter Pty Ltd ATF The Hunter Family Superannuation Fund v Count Financial Limited [2025] FCA 544. The available material is substantial, but it is still not the full text of every part of the reasons. In particular, Annexure A to the orders is referred to but not reproduced in the available text.

That means this page can confidently explain the overall dispute, the issues identified by the Court, the headline findings and the practical business reading of the case. It should not be treated as a substitute for the full reasons if you need the exact wording of every answer to the common questions or the Court's complete analysis of each document and witness.

The applicant was the corporate trustee of the Hunter Family Superannuation Fund. It sued on its own behalf and also as representative applicant for group members. The respondent, Count Financial Limited, held an AFSL during the relevant period and operated a franchise-style advice network. Under that model, Count authorised member firms and individuals employed by those firms to provide financial advice under Count's licence.

The applicant's own advisers were Centenary Financial Pty Ltd and three of its employees, Michael Williams, Arthur Duffield and Chad Hohnen. They were authorised representatives of Count. The applicant had acquired four financial products after receiving advice from those representatives. Three of those products had been issued before the relevant period, but commissions were payable on the products, including upfront and trail commissions.

The relevant period was 21 August 2014 to 21 August 2020. The applicant alleged that it received personal financial advice on six occasions during that period in relation to its products. The commercial complaint centred on the continued receipt of commissions, rebates and other benefits after the Future of Financial Advice reforms. The applicant said those arrangements, and related omissions in the advice, gave rise to fiduciary breaches, statutory breaches and misleading conduct.

One feature of the case stands out. The applicant did not say the products themselves were unsuitable or should never have been recommended. That made the dispute more focused, but also more technical. The Court was not being asked a simple question about bad product selection. It was being asked whether the remuneration structure, the conflict position, the disclosures and the supervision arrangements made the advice relationship legally defective.

The Court's introduction states the principal issue directly: whether the practice of financial advisers of a financial services licensee continuing to receive commissions or rebates from product providers after the FoFA reforms breached fiduciary duties owed to clients, contravened best interests and client priority duties in the Corporations Act, or constituted misleading or deceptive conduct.

That broad issue broke down into several separate legal questions. First, did the applicant's representatives owe fiduciary duties to the applicant, and if so, in relation to which advice? Second, did Count itself owe fiduciary duties, or was it otherwise liable for any fiduciary breach by the representatives? Third, did the representatives contravene s 961B and s 961J of the Corporations Act? Fourth, did Count fail to take reasonable steps to ensure compliance, contrary to s 961L? Fifth, did Count engage in misleading or deceptive conduct under s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL?

The catchwords and contents list show that the Court also had to deal with two important structural issues. One was the effect of grandfathering under s 1528 of the Corporations Act. The other was whether the applicant's broad group claims could really be answered through common questions in a representative proceeding. The Court's contents list also shows detailed sections on Count's remuneration policy, incentive program, supervision of representatives, quality assurance processes and licensee standards. That tells you the case was not just about abstract legal theory. It was also about how the licensee's systems worked in practice.

For business readers, the key point is that the Court treated fiduciary law, statutory advice duties and misleading conduct as distinct frameworks. A conflict issue does not automatically establish misleading conduct. A fiduciary allegation does not automatically prove a breach of s 961B or s 961J. And a complaint about adviser remuneration does not automatically prove that the licensee failed in its supervisory role. Each claim had to be proved on its own legal footing.

On the available extract, the applicant's case failed. The Court concluded that the only personal financial advice the applicant received with respect to its products during the relevant period was advice in relation to a life insurance policy with AMP Life Limited, described in the extract as the AMP Policy. That finding mattered because it narrowed the case significantly. The applicant had alleged six occasions of personal advice during the relevant period, but the Court did not accept that all of those interactions amounted to relevant personal financial advice about the applicant's products.

The Court further concluded that the applicant's representatives owed fiduciary duties to the applicant in relation to their recommendation during the relevant period to acquire the AMP Policy. But the Court did not find a breach. Instead, it found that the receipt of commissions and other benefits in connection with the AMP Policy was disclosed to the applicant and constituted part of the agreed remuneration for acquiring the policy, or was otherwise the subject of the applicant's informed consent.

The Court also concluded that Count did not owe fiduciary duties to the applicant with respect to the relevant period advice, or was not otherwise liable for any alleged breach of fiduciary duties by the applicant's representatives. On the statutory claims, the applicant did not establish contraventions of s 961B or s 961J by the representatives, and did not establish that Count contravened s 961L. On the misleading conduct claims, the applicant did not establish contraventions of s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL.

The orders then recorded that the common questions filed by Count on 2 July 2024 were to be answered in accordance with Annexure A, that the amended originating application was otherwise dismissed, and that the applicant was to pay Count's costs, as taxed or agreed.

This case was not only about one SMSF trustee and one advice relationship. It was also run as a representative proceeding. That matters because many businesses assume that if a remuneration practice is challenged once, a court can simply decide the issue for everyone affected. The extract shows the Court took a narrower view.

The Court said that, given the breadth and generality of the pleaded group member definition and the limited evidentiary foundation on which the group claims were advanced, the scope of the common questions that could be addressed in the proceeding was necessarily narrow. The parties could not agree the common questions. The Court said the common questions advanced by Count were framed in a way the Court was better placed to answer than those advanced by the applicant. The applicant's proposed questions, except to the extent accepted by Count, raised issues that could not be determined on a common basis in the way the case had been run.

That is commercially important. Advice disputes often depend on individual conversations, file notes, statements of advice, records of advice, financial services guides, fee arrangements, product features and client understanding. Even where a licensee uses common systems and common documents, the legal outcome may still turn on what happened in a particular client relationship. A broad class definition does not remove that problem.

For businesses facing or considering group litigation, this part of the case is a reminder that commonality has to be real. If the alleged wrong depends heavily on individual disclosure, consent, reliance or the content of personal advice, the court may only be willing to answer a limited set of common questions.

The contents list in the extract gives a useful picture of the factual material before the Court. It refers to the applicant's products, pre-relevant period advice, and a series of relevant period documents and interactions, including a 31 July 2015 file note and review questionnaire, an August 2015 record of advice, a November 2015 record of advice, July 2016 advice, a July 2017 record of advice and a March 2018 statement of advice. It also refers to renewal of the applicant's products and specific issues such as recommending non-APL products, obtaining products without commissions, and benefits or services in exchange for commissions.

On the fiduciary side, the contents list shows sections dealing with oral disclosures to Mrs Hunter, sufficiency of disclosure of commissions and rebates, sufficiency of disclosure of other benefits, and informed consent. On the statutory supervision side, it shows sections on Count's remuneration policy, the Contribution to Count program, supervision of remuneration, the Quality Advice Assurance process and Count's licensee standards.

That matters because it shows the case was evidence-heavy. The Court was not deciding the legality of commissions in the abstract. It was examining the actual advice relationship, the documents used, the remuneration arrangements in place, and the systems Count said it used to supervise representatives. For businesses, that is a practical warning. If your compliance position depends on what was disclosed, agreed or supervised, you need records that can prove it.

If you run a financial advice business, this case is best read as a reminder that conflict cases are won or lost on detail. The Court did not accept the applicant's broad theory that ongoing commissions, rebates and other benefits after FoFA necessarily established liability. Instead, the extract points to a close analysis of what advice was actually given during the relevant period, which product was involved, what had been disclosed, whether remuneration formed part of the agreed arrangement, and what supervision the licensee had in place.

That does not mean old remuneration structures are safe. It means you should not rely on assumptions either way. A court may find a conflict problem, a fiduciary breach or a statutory breach in another case with different facts, different documents or weaker disclosure. The safer reading is that businesses need a defensible process. That includes clear remuneration disclosure, accurate file notes, careful distinction between review activity and personal advice, and supervision systems that are more than paper policies.

If you are an AFSL holder, the extract is also a reminder that your own exposure will not always mirror the adviser's exposure. The Court distinguished between the representatives' position and Count's position. It separately considered whether Count owed fiduciary duties and whether Count had taken reasonable steps under s 961L. Licensees should therefore be able to show not only what their representatives did, but also what the licensee itself required, monitored and enforced.

If you are a business owner, investor or SMSF trustee receiving advice, the practical reading is straightforward. Ask how the adviser is paid. Ask whether commissions, rebates or other benefits continue to be received. Ask whether there are alternatives and whether the recommendation would change if the remuneration changed. Keep the advice documents and ask for plain explanations of any ongoing payment structure. If a dispute later arises, those details can be decisive.

These checkpoints are not a substitute for legal advice on your own facts. They are a practical way to read the case. The extract shows that courts will look closely at the actual relationship, the actual documents and the actual systems in place. Businesses that cannot produce that evidence may struggle even if they believe their practices were sound. Equally, claimants who frame the case too broadly may fail if they cannot prove the common issues they say exist.

The judgment is R and N Hunter Pty Ltd ATF The Hunter Family Superannuation Fund v Count Financial Limited [2025] FCA 544, Federal Court of Australia, Halley J, dated 27 May 2025. The extract states that the proceeding was heard in March 2024 and that the orders answered the respondent's common questions in Annexure A, dismissed the amended originating application otherwise, and awarded costs to Count.

The available text also shows the judgment runs to 712 paragraphs and contains detailed sections on the applicant's products, pre-relevant period advice, relevant period advice, fiduciary duty claims, Pt 7.7A claims, the s 961L claim, misleading conduct claims and representative claims. Because the full text of every section is not available here, this page focuses on the conclusions and structure that can be stated confidently from the published extract.