Law firm Mackay Chapman filed the suit in the Federal Court in Sydney on behalf of 24 victims, with the filing alleging that the auditors engaged to review the annual financial reports for the self-managed superannuation funds (SMSFs) failed to identify fraudulent documents prepared by Ms Caddick and failed to confirm that the assets said to be held by the SMSFs in fact existed.
It further alleges that auditors were negligent, engaged in misleading or deceptive conduct and/or representations, and breached the Corporations Act and the ASIC Act.
Ms Caddick was last seen at her Dover Heights home on the evening of Wednesday, 11 November 2020, and was reported missing two days later.
Ms Caddick, while posing as an adviser, allegedly defrauded 74 investors out of some $24 million through her company, Maliver.
Her scheme involved purporting to be a legitimate financial adviser, telling investors their funds were being predominately invested in ASX-listed equities using CommSec accounts. However, the Federal Court has since determined it was a Ponzi scheme, with the funds instead fraudulently diverted for Ms Caddick’s own use.
“Bruce Gleeson, one of the receivers appointed to the property of Ms Caddick, has stated following his investigations that he could not identify a single genuine document that Ms Caddick provided to her investors, and he could not identify any circumstances in which any of the CommSec account statements provided by Ms Caddick to her clients were found to have been true,” Mackay Chapman said in a media release.
According to the law firm at least five auditors were engaged to conduct the mandatory annual audit of the SMSFs between 2012 and 2020.
“The auditors all provided audit reports that, in effect, gave the SMSFs a clean bill of health,” Mackay Chapman said.
“Specifically, all of the audit reports found that the financial reports for the SMSFs were ‘free from material misstatement’ and ‘presented fairly in all material respects the financial position of the SMSF’. In other words, they did not identify any concerns.
“We now know that the financial reports reviewed by the auditors were supported by fraudulent documentation prepared by Ms Caddick and the assets said to be held by the SMSFs did not exist.”
The class action will return to court in December.
The filing comes two months after investors wrapped up in the scheme received their first payouts.
Following the liquidation of Ms Caddick’s assets, including the $9.8 million sale of her Dover Heights property, 55 investors were paid a total of $3 million.
Jones Partners, the firm that was appointed as the liquidators for Maliver and receivers of her property in December 2020, made the initial distribution to the victims.
Further proceeds are expected from the sale of an Edgecliff penthouse apartment, which Ms Caddick also owned.
Ms Caddick was last seen at her Dover Heights home on the evening of Wednesday, 11 November 2020, and was reported missing two days later.
The Australian Securities and Investments Commission had raised concerns that Maliver may have been providing financial services without an AFSL, or with the AFSL of another company without authorisation, to unlawfully deal with investor funds.
The Federal Court made interim orders against Ms Caddick and Maliver in November 2020, including a prohibition against her leaving Australia and removing assets held in Australia.
But Ms Caddick had not shown at the first case management hearing of the matter, having vanished.
Three months later, the 49-year-old’s decomposing foot was found on Bournda Beach on the NSW South Coast.
In November 2021, the Federal Court confirmed that Melissa Caddick and Maliver carried on a financial services business without holding an Australian Financial Services Licence, contrary to section 911A of the Corporations Act.
In May 2023, Deputy State Coroner Elizabeth Ryan ruled that Ms Caddick is dead, yet the precise circumstances surrounding her death remain unresolved.
“I have concluded that Melissa Caddick is deceased. However, a more problematical issue is whether the evidence is sufficient to enable a positive finding as to how she died and when or where this happened,” Ms Ryan said.
Whatever she may have been up to, auditors & their staff take note. There are only 2 ways to confirm investments in listed shares:
1. Direct confirmation at the share registry under a HIN or SRN; or
2. If held by a custodian/IDPS (platform arrangements), reliance on the GS007 auditors report to that custodian/platform
Stockbrokers reports are not proof of existence or ownership and never have been. As seen in this case, such reports are “just a piece of paper”.