This is a service specifically targeted at the needs of busy non-executive directors (NEDs). We aim to give you a ‘heads up’ on the things that matter for NEDs in the week ahead - all in two minutes or less.
In this edition, we discuss the disqualification of a director by the Australian Securities and Investments Commission (ASIC) for breaches of directors’ duties, and the Federal Government’s unveiling of a new reforms to environmental legislation. We also examine the Takeovers Panel’s decision to decline to conduct proceedings in relation to the affairs of Vintage Energy Limited (ASX: VEN) (Vintage) and a subsequent review application in the same matter.
In Risk Radar, we examine the current climate of class actions in Australia and the risk posed by overseas litigation funders to pursue class actions in Australia.
GOVERNANCE
ASIC disqualifies director for dishonest conduct and breaches of directors’ duties. On 18 April 2024, ASIC announced that it had disqualified Mr Miroslav Jack Samardzija from managing corporations for the maximum period of five years due to his dishonest conduct and flagrant disregard for his duties as a director. Mr Samardzija was the director of three companies in the building and construction industry between September 2019 and May 2021 which entered liquidation. ASIC found that Mr Samardzija breached his duties as a director by: (1) failing to comply with statutory obligations to lodge tax returns for one of the companies; (2) failing to provide accounting books and records for two of the companies to the liquidator; and (3) acting dishonestly in the management of one of the companies by claiming GST refunds using false invoices and bank statements and transferring company funds for the benefit of other companies or related parties. This decision is a strong reminder that ASIC takes breaches of directors’ duties seriously, especially in cases of dishonesty or flagrant disregard. See ASIC media release .
REGULATION
Federal Government scales back environment reform in its unveiling of new environmental authorities. On 16 April 2024, the Minister for the Environment and Water, the Hon Tanya Plibersek, announced plans to stage the introduction of the Federal Government’s ‘Nature Positive Plan’ (NPP). The Federal Government has announced that it plans to introduce reforms in stages, with the current stage being the establishment of the Environment Protection Agency (EPA) and Environment Information Australia (EIA). While the EPA’s functions will remain unclear until draft legislation is introduced, the EIA’s intended functions encompass providing environmental information, publishing State of the Environment reports every two years, and tracking progress towards Australia’s commitment to protect 30% of Australia’s land and seas by 2030. The move will hopefully allow for faster decision-making and improve trust and integrity in Australia’s environmental protection processes, while, as Minister Plibersek stated, allowing for more time for the government to consult with stakeholders in the mining industry before reforms are implemented. See media release .
LEGAL
Takeovers Panel declines to conduct proceedings in relation to the affairs of Vintage Energy and receives review application. On 16 April 2024, the Takeovers Panel announced that it declined to conduct proceedings in relation to an application by Keybridge Capital Limited (Keybridge), a substantial shareholder in Vintage, in relation to the affairs of Vintage. The application, discussed in a previous edition of Boardroom Brief , concerned a $8 million capital raising (comprising a $1.3 million placement and a $6.7 million accelerated non-renounceable entitlement offer) that Keybridge argued was excessive, resulted in an unacceptable change of control, and constituted an unacceptable frustrating action to Keybridge’s section 249D notice. The Panel considered that the placement and entitlement offer were not likely to have a material effect on the control of Vintage given that its use of a dispersion strategy, including a top up facility and the appointment of a professional underwriter and a number of sub-writers. While the Panel noted that “it would have been good practice ” for Vintage to disclose the potential control effect of the entitlement offer in the retail entitlement offer booklet, the Panel was satisfied that Vintage had notified shareholders of the potential control effect through public disclosure on the Australian Securities Exchange. On 18 April 2024, the Panel received an application from Keybridge seeking a review of its decision. A review Panel has not yet been appointed, and the Panel has not decided whether to conduct proceedings. See Takeovers Panel media release - original application and review application .
RISK RADAR
A call for regulatory action to curb class action ‘lawfare’. The proliferation of class action claims in Australia backed by wealthy litigation funders has caused concern amongst many of Australia’s business groups, including the Australian Industry Group and the Business Council of Australia. Whilst the former Treasurer, Mr John Frydenberg, attempted to curb class actions by imposing stricter regulatory requirements on litigation funders in a bid to ensure litigation funders are held to a high standard of acting honestly, efficiently and fairly, this was ultimately rolled back in mid 2022 when the new Federal government came into power citing the lack of necessity to create such a framework (see article). Commentators have recently raised concerns that the arrival of new class action law firm players in Australia like Pogust Goodhead - backed by large litigation funders flush with cash - have the goal of ‘waging lawfare on the ASX’. Such class action firms have indicated to ASX listed companies that “we are putting Australian corporations on notice that we are ready to hold them to account ” (see ). Of course, there is a fine balance between being held to account and being subject to potentially vexatious litigation: in this light, Directors need to be particularly cognisant of the potential for shareholders and other well-funded interest groups to seek redress through the Courts.