If I agree to be a nominated Responsible Manager do I take on additional personal liability?

[Grant Holley]

The short answer to this question is no.

 

This response may seem at odds with the message implicit in the title Responsible Manager (RM).  Surely that means that I am the manager that is responsible for ensuring the licensee complies with its legal obligations and therefore personal liability will attach to me if I don’t.

 

The relevant legislation does not create the role of responsible manager or set out any duties or obligations that attach to it.  It is therefore not possible for an RM to contravene a section of the legislation by not doing something an RM is required to do; simply because there is none.

 

The legislation imposes obligations on Licensees to, among other things, have adequate human resources to carry on the financial services business, to supervise the business and to ensure that this continues to be the case.  The way the Licensee demonstrates that it has the necessary human resources, in terms of knowledge, experience and character, is to nominate people who demonstrate that competence in relation to the financial services, financial products and the regulatory regime.

 

The RM is nominated to demonstrate the competence of the Licensee.  They are able to do this because of what they are already doing, or will be doing in the business, that will enable them to bring their competence to bear in the operation of the business.  However, it is the Licensee that carries the legal obligations, not the RM in their personal capacity.  The RM’s role is to maintain their competence and to bring it to bear in the business.

 

Of course, a person who is nominated as an RM may be, but will not necessarily be, a director or officer of the company.  In that case, the directors and officers duties in the Corporations Act will apply to them in that capacity.  They will usually also be an employee of the company and they will have contractual obligations arising from their employment contracts.  Becoming an RM does not provide protection from legal liabilities they may have in some other capacity, but it does not add an additional layer.  Rest easy!

 

Author:  Grant Holley

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