Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.10A - EXTERNAL DISPUTE RESOLUTION  

Division 3 - Additional provisions relating to superannuation complaints  

Subdivision C - Determinations of superannuation complaints  

SECTION 1055   MAKING A DETERMINATION  

1055(1)  
In making a determination of a superannuation complaint, AFCA has, subject to this section, all the powers, obligations and discretions that are conferred on the trustee, insurer, RSA provider or other person who:


(a) made a decision to which the complaint relates; or


(b) engaged in conduct (including any act, omission or representation) to which the complaint relates. Affirming decisions or conduct

1055(2)  
AFCA must affirm a decision or conduct (except a decision relating to the payment of a death benefit) if AFCA is satisfied that:


(a) the decision, in its operation in relation to the complainant; or


(b) the conduct;

was fair and reasonable in all the circumstances.

1055(3)  
AFCA must affirm a decision relating to the payment of a death benefit if AFCA is satisfied that the decision, in its operation in relation to:


(a) the complainant; and


(b) any other person joined under subsection 1056A(3) as a party to the complaint;

was fair and reasonable in all the circumstances.

Varying etc. decisions or conduct

1055(4)  
If AFCA is satisfied that:


(a) a decision (except a decision relating to the payment of a death benefit), in its operation in relation to the complainant; or


(b) conduct;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but only for the purpose of placing the complainant, as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists.

1055(5)  
If AFCA is satisfied that a decision relating to the payment of a death benefit, in its operation in relation to:


(a) the complainant; and


(b) any other person joined under subsection 1056A(3) as a party to the complaint;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but only for the purpose of placing the complainant (and any other person so joined as a party), as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists.

1055(6)  
AFCA may, under subsection (4) or (5), do any of the following:


(a) vary the decision;


(b) set aside the decision and:


(i) substitute a decision for the decision so set aside; or

(ii) remit the decision to the person who made it for reconsideration in accordance with any directions or recommendations of AFCA;


(c) if the complainant was unfairly or unreasonably admitted into a life policy fund:


(i) require a party to the complaint to repay all money, or particular money, received under the life policy to which the complaint relates; or

(ii) set aside the whole or part of the terms or conditions of the life policy in their application to the complainant; or

(iii) vary the governing rules of the life policy fund in their application to the complainant; or

(iv) cancel the complainant ' s membership of the life policy fund or of any sub-plan of the fund;


(d) if the complainant was unfairly or unreasonably sold an annuity policy, contract of insurance or RSA:


(i) require a party to the complaint to repay all money, or particular money, received under the annuity policy, contract or RSA; or

(ii) set aside the whole or part of the terms or conditions of the annuity policy, contract or RSA in their application to the complainant; or

(iii) vary the terms or conditions of the annuity policy, contract or RSA in their application to the complainant.
Limitations on determinations

1055(7)  
AFCA must not make a determination of a superannuation complaint that would be contrary to:


(a) law; or


(b) subject to paragraph (6)(c), the governing rules of a regulated superannuation fund or an approved deposit fund to which the complaint relates; or


(c) subject to paragraph (6)(d), the terms and conditions of an annuity policy, contract of insurance or RSA to which the complaint relates.


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