Case No: 538803 Determination Page 1 of 4
Case number: 538803 19 October 2018
On 6 June 2018 the applicant opened an account with the financial services provider (FSP). This dispute is about the applicant’s instructions to the FSP on 24 July 2018 to withdraw the balance in the account in the amount of EUR10,001.38 (the funds).
The applicant seeks for the FSP to honour the withdrawal request.
1.2 Issues and key findings
Is the FSP required to process the applicant’s withdrawal request?
The FSP is required to process the withdrawal requests because:
• The applicant provided sufficient information to show the withdrawal request was made, he had (and continues to have) sufficient funds in his trading account.
• The FSP has not identified any valid reason for not transferring the applicant’s funds to his bank account.
What loss did the FSP’s breach cause the applicant?
The FSP’s breach caused the applicant loss of EUR10,001.38.
This determination is in favour of the applicant.
The FSP must, within 28 days of the applicant’s acceptance of the determination, pay the applicant EUR10,001.38 plus interest as set out in section 2 of this Determination.
Case No: 538803 Determination Page 2 of 4
2 Reasons for determination
2.1 Is the FSP required to process the applicant’s withdrawal request?
The applicant traded the FSP’s margin fx products
The applicant was the FSP’s customer and traded margin fx contracts issued by the FSP. This trading was governed by a contract between the parties in the form of the FSP’s terms and conditions.
The FSP has not provided he FOS with a copy of its terms and conditions despite requests from FOS for this information. Typically, the terms and conditions would set out the FSP’s withdrawal processes and identify factors which may cause the FSP to not act on a withdrawal request.
The applicant has the onus of proving the claim
The applicant has the onus of establishing:
• the applicant made the withdrawal requests
• the FSP received the withdrawal requests
• the withdrawal requests contained sufficient information for the FSP to act upon
• the applicant had sufficient funds in his accounts
• the funds were not received from the FSP into the bank account nominated in the withdrawal form.
The FSP has the onus of proving reasons for not processing the withdrawal
Once the above matters are established, the onus shifts to the FSP to identify and prove a contractual or other reason for not paying the funds into the applicant’s nominated bank account.
FOS may draw an adverse inference
The applicant generally bears the onus of proving, on the balance of probabilities, that the FSP breached an obligation owed to him and that the breach caused him to suffer a loss.
In a court of law, the parties are required to produce all relevant documentation. A failure to do so is a contempt of court. As an external dispute resolution scheme, the Financial Ombudsman Service (FOS) has no such powers. Instead, it requires the parties to abide by their contractual obligations as set out in the Terms of Reference (TOR).
The TOR requires the parties to produce information requested by FOS. FOS may draw an adverse inference if a party to a dispute fails to comply with a request for information, without reasonable excuse.
The Operational Guidelines (Guidelines) to the TOR explain that an adverse inference may be that the withheld information:
• does not favour the party who has failed to provide the requested information; or
Case No: 538803 Determination Page 3 of 4
• undermines their position.
The Guidelines state it is not necessary for FOS to specify, in advance of a failure to comply with a FOS request, exactly what inference FOS will draw from the failure.
The FSP has failed to respond to any of FOS’s information requests. Where appropriate, I have drawn adverse inferences against the FSP that its failure to respond has meant it is not able to substantiate its position.
The FSP opened a trading account for the applicant
By email dated 6 June 2018, the FSP confirmed that an account had been created for the applicant on their server. The applicant ordered a bank transfer in the amount of EUR10,000 the same day.
FOS has requested from the FSP the terms of the account and the account trading history together with balances in the account. The FSP has not responded with this information request.
The applicant followed the FSP’s withdrawal process
The applicant has provided the following information to FOS:
• details of his Funds Withdrawal Form dated 24 July 2018
• a copy of a report showing a full history of the account held with the FSP.
The report shows that the applicant had sufficient funds to meet the withdrawal request as at 24 July 2018. It shows an account balance in the amount of EUR10,001.38. The report also shows that the applicant had no open positions at that time. I accept this amount is owed to the applicant.
On 24 July 2018 the applicant submitted a Funds Withdrawal Form to withdraw the balance in the account. Since then, the applicant has sent several emails to the FSP following up on his withdrawal request without success. There is no evidence of a reply from the FSP.
One of the emails was sent by the applicant on 22 August 2018. The applicant has provided FOS with an email dated 23 August 2018 showing the FSP read this email. In the absence of any submissions by the FSP to the contrary, I am prepared to accept that it received the withdrawal request and follow up emails.
The FSP has not provided any valid reason for not transferring the funds
Given that the FSP has not provided me with information about the account type, it’s trading history and emails (among other things), I draw an adverse inference that the information withheld from me does not favour the FSP or it undermines their position.
It follows that the FSP has not demonstrated any reasonable basis for the delayed withdrawal. By failing to process the withdrawal request, the FSP has not followed instructions in circumstances where the applicant has made his intention clear to withdraw the funds from the account.
I am persuaded that the applicant should receive the balance remaining in his account in the amount of EUR10,001.38.
Case No: 538803 Determination Page 4 of 4
2.2 What loss did the FSP’s breach cause the applicant?
The FSP’s still owes the applicant EUR10,001.38
Compensation for loss does not automatically follow a finding that the FSP has breached the law. The onus is on the applicant to establish, on the balance of probabilities that the FSP breached its duty, the applicants suffered a loss, and the breach caused the loss.
I accept that if the FSP did not breach its obligations to process the applicant’s withdrawal request, the applicant would have received his monies shortly after 24 July 2018 or within 48 hours in accordance with the industry practice.
The FSP is required to pay the applicant EUR10,001.38.
It is fair to award interest
To maintain the real value of the applicant’s compensation, I consider that it is fair that the FSP pay interest equivalent to the change in the ABS Consumer Price Index1 from 26 July 2018, the date the FSP ought to have transferred to the applicant EUR10,001.38 to the date of payment under this Determination.
3 Supporting information
I have determined this dispute based on what it believes is fair in all the circumstances. In doing so I have regard to the relevant law, good industry practice, codes of practice and previous FOS decisions (but are not bound by these). I have taken into account relevant material submitted by the parties.
I am satisfied there has been a full exchange of relevant documents relied on to make this determination and that each party has had the opportunity to address any issues raised by the other. In particular, I am satisfied that the FSP has had numerous opportunities to make submissions.
This dispute has been expedited to a determination due to the FSP’s failure to make a substantive response to the issues in dispute. No recommendation was issued.
Dr June Smith
Financial Ombudsman Service Australia