Australian Securities and Investments Commission v Big Star Energy Limited (No 3) [2020] FCA 1442

Federal Court of Australia

Australian Securities and Investments Commission v Big Star Energy Limited (No 3) [2020] FCA 1442 File number: WAD 588 of 2017

Judgment of: BANKS-SMITH J

Date of judgment: 9 October 2020

Catchwords: CORPORATIONS - continuous disclosure obligations - s 674 of the Corporations Act 2001 (Cth) - ASX Listing Rule 3.1 and Rule 3.1A - where listed public company announced to market that it had entered into two sale agreements of significant assets - where company did not disclose identity of purchaser - whether company had assessed prospect of purchaser completing under the sale agreements - whether company obliged to disclose if it had not made that assessment - where purchaser had advised company that it did not have financial approval in place for both sale agreements - whether company obliged to disclose information - where non-disclosed information not generally available - whether non-disclosed information was material - whether company contravened s 674(2) of the Corporations Act CORPORATIONS - materiality of non-disclosed information a matter for expert evidence - consideration of identity of relevant investors - consideration of how relevant investors determine whether to acquire or dispose of securities - consideration of what influences investors in deciding whether to acquire or dispose of securities - consideration of whether non-disclosure of information was material - challenge to witness's expertise CORPORATIONS - whether director of company contravened s 674(2A) of the Corporations Act - whether director knowingly concerned in contravention by company of s 674(2) - consideration of state of knowledge that must be established before a person is knowingly concerned in a contravention for the purpose of s 674(2A) - whether actual knowledge required CORPORATIONS - whether director of company contravened s 180(1) of the Corporations Act by failing to exercise care and diligence in causing or permitting company to contravene s 674(2) - whether s 180(2) business judgment rule applies EVIDENCE - drawing of inferences in absence of direct evidence - where second defendant does not give evidence - application of rule in Jones v Dunkel in civil penalty proceedings