James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332

Reported Decision: 81 ACSR 1

New South Wales Court of Appeal

CITATION: James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 and 20 May 2010

JUDGMENT DATE: 17 December 2010

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 1; Giles JA at 1

DECISION: 1. The appeal and the cross-appeal are each dismissed; 2. The appellant is to pay 90 per cent of the respondent's costs.

CATCHWORDS: CORPORATIONS - market misconduct - false or misleading statements - Corporations Act 2001 (Cth), s 1041E - whether statements false in a material particular or materially misleading - whether statements likely to induce persons to buy or sell shares - whether statements likely to have the effect of increasing, reducing, maintaining or stabilising the price for financial products - CORPORATIONS - market misconduct - misleading or deceptive conduct - Corporations Act 2001 (Cth), s 1041H - CORPORATIONS - continuous disclosure obligations - listing rules - Corporations Act 2001 (Cth), s 674 - ASX listing rule 3.1 - whether information required to be disclosed - whether corporate restructure material - significance of legal advice - relevance of management's view as to non-disclosure - objective ex ante test under s 674 - relevance of ex post facto events - CORPORATIONS - civil penalties - relief from liability - Corporations Act 2001 (Cth), s 1317S - failure of company to provide evidence of honesty - whether breach 'flagrant'

Corporations Act 2001 (Cth) LEGISLATION CITED: Evidence Act 1995 Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment