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 just a few minutes.
In this edition, we discuss the draft merger process guidelines released by the Australian Competition and Consumer Commission (ACCC), recent Takeovers Panel decisions in relation to the affairs of Global Lithium Resources Limited (ASX: GL1) (GL1), Keybridge Capital Limited (ASX: KBC) (KBC) and Benjamin Hornigold Ltd (ASX: BHD) (BHD) and a Supreme Court of New South Wales declaration in relation to the removal and appointment of KBC directors.
In Risk Radar, we analyse the uncertainty businesses face as we head towards a Federal election on 3 May 2025.
Regulatory
ACCC releases draft merger process guidelines
On 27 March 2025, the ACCC released draft guidelines explaining the processes it will use when assessing acquisitions under the new mandatory merger control regime which will come into effect on 1 January 2026. The first phase of the ACCC’s review will take up to 30 business days, during which most notified acquisitions are expected to be approved. The ACCC may decide that a notified acquisition be subject to a more in-depth competition assessment (phase two), which will take up to an additional 90 business days. Parties may also apply for an assessment of an acquisition on net public benefit grounds in certain circumstances, including if the ACCC does not approve the acquisition in phase two, which will take up to 50 business days. Details of notified acquisitions and the ACCC’s determinations and reasons, will be published on the Acquisitions Register. Submissions on the guidelines are open until 28 April 2025. The ACCC will update the draft guidelines before the voluntary notification regime commences on 1 July 2025.
Legal
Takeovers Panel publishes reasons for declining to conduct review proceedings in relation to the affairs of Global Lithium Resources Ltd
On 27 March 2025, the Takeovers Panel published the reasons for the decision of the review Panel not to conduct proceedings on a review application by GL1 in relation to its affairs. As noted in a previous edition of Boardroom Brief, GL1’s application concerned an alleged undisclosed association among certain shareholders ahead of an annual general meeting at which board composition resolutions were on the agenda. The review Panel considered that no new circumstances had arisen in the two months preceding the application, agreed with the original Panel that the application had been brought out of time and determined not to exercise its discretion to extend time for bringing an application having regard to the absence of credible allegations of clear and serious unacceptable circumstances. Accordingly, the review Panel determined not to conduct proceedings on the review application.
Takeovers Panel publishes reasons for decisions in relation to the affairs of Keybridge Capital Limited and the affairs of Benjamin Hornigold Ltd
On 26 March 2025, the Takeovers Panel published the reasons for its decisions to decline to conduct proceedings on applications from BHD in relation to its affairs and the affairs of KBC. As discussed in a previous edition of Boardroom Brief, the Panel determined that the circumstances the subject of the applications substantially overlapped with matters in proceedings currently before the Supreme Court of New South Wales and concluded that there was no reasonable prospect that it would make a declaration of unacceptable circumstances. The Panel noted that the outcome of the Court proceedings may have a substantial effect on whether orders were still required or should be made and emphasised that it should take “a cautious approach”. While it noted that the Court was not directly dealing with the alleged undisclosed relevant interests in KBC and BHD and the alleged undisclosed associations or concert party behaviours in relation to KBC and BHD, the Panel also had concerns regarding the strength of evidence provided and considered that those matters formed part of a broader dispute between KBC and WAM Active Limited. As a result, the Panel considered it was not appropriate to adjudicate on these matters in the circumstances.
Supreme Court of New South Wales makes declaration regarding removal and appointment of Keybridge Capital Limited directors
On 21 March 2025, the Supreme Court of New South Wales made a declaration that, on 10 February 2025, KBC validly held a meeting which its members passed resolutions proposed by WAM Active Limited (WAM) for the removal and appointment of directors. The proceedings, which had significant bearing on the simultaneous proceedings before the Takeovers Panel noted above, involved a challenge to the appointment of a voluntary administrator to KBC on the evening before the meeting convened by WAM, and a challenge to the purported adjournment of that meeting before any business was conducted. Justice Nixon considered that WAM had failed to establish that the board of directors of KBC appointed a voluntary administrator for an improper purpose. However, his Honour determined that the purported adjournment of the meeting was invalid and of no effect because the chair did not specify a time at which the meeting would resume, as required by the constitution of KBC, and the resolutions to remove and appoint directors were therefore validly passed.
Risk Radar
Budget deficits, inflation and election uncertainty: a perfect storm for directors
On 25 March 2025, the Commonwealth Treasurer, Dr Jim Chalmers, handed down the 2025-26 Federal Budget. Updates to key economic forecasts point to sustained deficits over the forward estimates period, raising concerns about Australia’s long-term economic stability and potential tax or spending adjustments. It seems that businesses will need to prepare for a policy environment where fiscal tightening – whether through higher taxes or reduced corporate incentives – becomes more likely. Public sector spending constraints may also impact industries reliant on government contracts and infrastructure investment. Despite efforts to curb inflation, rising costs continue to erode household spending power. Wage growth has offered some relief, but businesses face ongoing input cost pressures and shifting consumer demand, particularly in financial services, retail and essential services. The upcoming election adds further uncertainty, with competing fiscal strategies potentially impacting corporate tax policy, industrial relations and ESG regulation, albeit the extent of divergence between the parties will only become fully apparent as the campaign progresses. Unfortunately, to date the political discourse has focused more on short-term relief measures than addressing structural economic risks, leaving businesses to prepare for potential volatility in policy direction. Directors must factor in a shifting fiscal landscape, engage proactively with policymakers and stress-test financial models against prolonged budget constraints. Navigating economic and political uncertainty will require strategic flexibility, ensuring resilience against both market and policy shifts.