ASIC sues Diversa Trustees over First Guardian failures
The corporate cop has launched legal action against the super trustee for allegedly failing to do enough due diligence on the now-collapsed fund.
Australia’s corporate regulator has started civil penalty proceedings in the Federal Court against Diversa Trustees, alleging failures concerning the First Guardian Master Fund.
Announcing the action on Tuesday, the Australian Securities & Investments Commission alleged Diversa failed to do enough due diligence before allowing its members to invest in First Guardian and failed to enforce a 50 per cent holding limit it had imposed for the fund.
Diversa also failed to have systems and processes in place to ensure there was compliance with the holding limit, ASIC said.
An investigation by The Australian found some investors had 100 per cent of their super invested in First Guardian via Diversa.
Around $300m was invested into First Guardian from 2020 to 2024 through superannuation funds, for which Diversa was trustee.
“This is another significant action relating to the First Guardian collapse, which is an ongoing enforcement priority for 2026,” ASIC deputy chair Sarah Court said.
“Superannuation trustees must put their members first by acting with care and skill and by carrying out proper checks on investment options made available on their platforms,” she said.
In a statement, Diversa said it would defend against the regulator’s claims.
“Diversa has fully cooperated with ASIC’s investigation and will be vigorously defending ASIC’s claim,” Diversa said.
“Diversa notes that in addition to the actions in respect of Falcon Capital (the responsible entity of First Guardian), ASIC has commenced proceedings against Interprac Financial Planning Pty Ltd and entities associated with the Venture Egg financial planning business who (along with others) advised a number of individuals to invest in First Guardian.
“As part of Diversa’s response to the claim, Diversa will be giving consideration to the role that these and other parties may have played in causing loss or damage to members in connection with the First Guardian collapse,” the company said.
Diversa added that it believed First Guardian fund’s losses were due to fraud and that it would be applying to the Federal Goverment for financial assistance to repay investors.
ASIC’s move to sue Diversa comes after it sued Equity Trustees for failing to do enough due diligence on the Shield Master Fund which, like First Guardian, is now in liquidation, leaving thousands of members without any retirement savings.
ASIC began investigating Equity Trustees, Netwealth and Diversa earlier this year as part of its probe into First Guardian and its responsible entity, Falcon Capital
The fund, which is currently in the process of being wound up amid allegations it mishandled up to $450m of investor funds, was available to investors on superannuation platforms hosted by Equity Trustees, Netwealth and Diversa.
First Guardian suspended redemptions for its 6000 investors in May 2024 under the guise of a short-term restructure but never reopened.
The regulator has since made a series of allegations against the fund and its directors, including that $45m was handed to marketers and lead generators to promote the fund, and that chief executive David Anderson had ties or financial interests in a number of investments made by the fund.
On Monday, the Federal Court heard First Guardian’s former chief investment officer, Simon Selimaj, deny any knowledge of tens of millions of dollars in unsecured loans handed to a devout Melbourne property developer weeks before the fund was suspended.
Under questioning from lawyers for liquidators FTI Consulting, Mr Selimaj told the court he only found out about the money when the corporate regulator looped him in late last year.
Mr Selimaj sought to shift the blame on to Mr Anderson, saying his younger colleague was in charge of the unlisted side of the business, including dealings with property developer Abdullah (Abidal) Guerinat.
“David would have had some sort of arrangement with Abidal to figure out (the deal) … My specialty is listed. David understands the unlisted space. So David would have been in discussions … to sort out the terms (of any loan agreement).”
ASIC is seeking orders for compensation, declarations and civil penalties from the Court.
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