Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 2) [2023] FCA 1217

Federal Court of Australia Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 2) [2023] FCA 1217 File number: VID 1153 of 2018

Judgment of: MOSHINSKY J

Date of judgment: 13 October 2023

Catchwords: CORPORATIONS – continuous disclosure – share placement – where the defendant (ANZ) undertook a fully underwritten institutional share placement to raise $2.5 billion – where the Underwriters recommended that approximately $754 million of the shares (later adjusted to approximately $790 million of the shares) not be allocated to investors, and be taken up by the Underwriters, and ANZ accepted that recommendation – where ANZ's completion announcement stated that it had raised $2.5 billion in equity but did not refer to the fact that approximately $790 million of the shares had not been allocated to institutional investors and therefore would be taken up by the Underwriters – whether ANZ breached its continuous disclosure obligation under s 674(2) of the Corporations Act 2001 (Cth) – whether the pleaded information was not "generally available" – whether the pleaded information was material – held: ANZ breached its continuous disclosure obligation

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), s 19 Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth), ss 674, 675, 676, 677, 798H ASIC Market Integrity Rules (ASX Market) 2010

Cases cited: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; 264 ALR 201 Australian Securities and Investments Commission v GetSwift Ltd (Liability Hearing) [2021] FCA 1384 Australian Securities and Investments Commission v Vocation Ltd [2019] FCA 807; 371 ALR 155 Bert v Red 5 Ltd [2016] QSC 302; 349 ALR 210 Crowley v Worley Ltd [2022] FCAFC 33; 293 FCR 438 Cruickshank v Australian Securities and Investments Commission [2022] FCAFC 128; 292 FCR 627 Grant-Taylor v Babcock & Brown Ltd (in liq) [2015] FCA 149; 322 ALR 723 Grant-Taylor v Babcock & Brown Ltd (in liq) [2016] FCAFC 60; 245 FCR 402 Jubilee Mines NL v Riley [2009] WASCA 62; 40 WAR 299