Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287

[2009] ALMD 5385 27 ACLC 522 71 ACSR 368 Reported Decision : 256 ALR 199 230 FLR 1 256 ALR 199 230 FLR 1

New South Wales Supreme Court

CITATION : Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287

HEARING DATE(S) : 29, 30 September 2008; 1, 2, 3, 7, 8, 13, 14, 15, 20, 21, 22, 23, 24, 28 October 2008; 3, 4, 6, 10, 11, 12, 13, 14 Nov 2008; 4, 5, 8, 9, 10, 11, 12 15, 16, 17, 18, 19 December 2008; 2, 3, 4, 5, 9, 10, 11, 12 February 2009; 2 March 2009

JUDGMENT DATE : 23 April 2009

JUDGMENT OF : Gzell J

DECISION : See summary at [1269] and following.

CATCHWORDS : CORPORATIONS - Supervision, Regulation and Correction - Civil penalty proceedings - Whether announcement to the ASX approved at directors' meeting - Whether minute to that effect subject to statutory presumption under s 251A or s 1305 of the Corporations Law - Whether false or misleading - Whether directors and senior executives acted in breach of s 180(1) of the Corporations Law - Whether in failing to disclose information with respect to a deed of covenant and indemnity (DOCI) there was a breach of Listing Rule 3.1 and s 1001A(2) of the Corporations Law - Whether the directors who executed the DOCI were in breach of s 180(1) - Whether the chief executive officer approved the release of the ASX Announcement and breached s 180(1) - Whether the company breached s 995(2) of the Corporations Law - Whether the company breached s 999 of the Corporations Law - Whether the CEO was in breach of s 180(1) for statements made at a press conference - Whether he was he breach of s 181 of the Corporations Law - Whether the company was in breach of s 995(2) and s 999 - Whether there were breaches of s 180(1), s 181, s995(2) and s 999 for statements made in two subsequent ASX Announcements - Whether the directors were in breach of s 180(1) of the Corporations Act in approving a draft information memorandum to be used in a members' scheme of arrangement - Whether the CEO and secretary and general counsel were in breach of s 180(1) in approving the draft IM and authorising a letter to be sent to the Court - Whether the company was in breach of s 995(2) and s 999 of the Corporations Act - Whether the CEO was in breach of s 180(1) and s 181 of the Corporations Act for statements made in United Kingdom and slides lodged with the ASX - Whether the company was in breach of s 1041E and s 1041H of the Corporations Act - Whether the company was in breach of Listing Rule 3.1 and s 674(2) of the Corporations Act for failing to disclose a restructure of the James Hardie group