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nsw_caselaw:549ff7443004262463c68ec8:69 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “The Foundation will concentrate on managing its substantial assets for the benefit of claimants. Its establishment has effectively resolved James Hardie’s asbestos liability and this will allow management to focus entirely on growing the company for the benefit of all shareholders.”
A separate fund o... | 69 |
nsw_caselaw:549ff7443004262463c68ec8:70 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | In establishing the Foundation, James Hardie sought expert advice from a number of firms, including PricewaterhouseCoopers, Access Economics and the actuarial firm, Trowbridge. With this advice, supplementing the company’s long experience in the area of asbestos, the directors of JHIL determined the level of funding re... | 70 |
nsw_caselaw:549ff7443004262463c68ec8:71 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | Mr Macdonald said Sir Llewellyn Edwards, who has resigned as a director of James Hardie Industries Limited to take up his new appointment as chairman of the Foundation, has enjoyed a long and distinguished career in medicine, politics and business.
His experience with James Hardie will assist the Foun... | 71 |
nsw_caselaw:549ff7443004262463c68ec8:72 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | This document contains forward-looking statements. Forward-looking statements are subject to risks and uncertainties and, as a result readers should not place undue reliance on such statements. The inclusion of these forward-looking statements should not be regarded as a representation that the objectives or plans desc... | 72 |
nsw_caselaw:549ff7443004262463c68ec8:73 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 96 Furthermore, there is a tension when a matter is the subject of an appeal or likely to be the subject of an appeal and there is perceived to be some significance in a resolute continuance of a denial of events found by the primary judge (Australian Securities and Investments Commission v Whitlam (No 2) [2002] NSWSC ... | 73 |
nsw_caselaw:549ff7443004262463c68ec8:74 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “What constitutes breach of the standards of care and of diligence, in a particular case, will depend on a wide variety of circumstances including the precise nature of the business conducted by the company and the composition of its board. However, the case law indicates that there is a core irreducible requirement of... | 74 |
nsw_caselaw:549ff7443004262463c68ec8:75 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | Although the standard of skill may vary in accordance with the particular skills of the director, the core, irreducible requirement of skill involves an objective test, such as “ordinary competence” ( Kemish , above at 373 per Foster J) or “reasonable ability” ( Rema Industries and Services Pty Ltd v Coad (1992) 107 AL... | 75 |
nsw_caselaw:549ff7443004262463c68ec8:76 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 100 As Austin J points out in Australian Securities and Investments Commission v Vines [2003] NSWSC 1116; (2003) 182 FLR 405 at 415 [38] there is encompassed by the statutory formulation of care and diligence an objective standard measured by reference to what a reasonable man of ordinary prudence would do enhanced whe... | 76 |
nsw_caselaw:549ff7443004262463c68ec8:77 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 102 It was submitted that since the release of the Final ASX Announcement was but part of a series of communication strategies for informing the public of the separation of Coy and Jsekarb from the James Hardie group, the contravention of Section 180(1) was at the lower end of the spectrum of seriousness and misleading... | 77 |
nsw_caselaw:549ff7443004262463c68ec8:78 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 103 I do not accept that submission. This event, while isolated, was highly significant. The board had decided to form the Foundation, to settle Coy and Jsekarb upon it and to provide a level of funding to meet future asbestos claims. The non-executive directors knew from the board papers they had received at this and ... | 78 |
nsw_caselaw:549ff7443004262463c68ec8:79 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 104 This was a serious breach of duty and a flagrant one. The non-executive directors were endorsing JHIL’s announcement to the market in emphatic terms that the Foundation had sufficient funds to pay all legitimate present and future asbestos claims, when they had no sufficient support for that statement and they knew... | 79 |
nsw_caselaw:549ff7443004262463c68ec8:80 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 106 Included in the material made available to them at the 15 February 2001 Meeting was a sensitivity analysis forming part of the Cashflow Model. It demonstrated that a drop of 1% in the investment rate adopted in the Cashflow Model halved the fund. In other words, on a 51 year analysis, the fund would be exhausted so... | 80 |
nsw_caselaw:549ff7443004262463c68ec8:81 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 107 The meeting was not informed that PwC and Access Economics had been instructed not to analyse the assumptions underlying the Cashflow Model. All the non-executive directors were told was that PwC and Access Economics had found the Cashflow Model to be logically sound and technically correct. But that did not justif... | 81 |
nsw_caselaw:549ff7443004262463c68ec8:82 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 108 There were a number of occasions subsequent to the meeting at which the Draft ASX Announcement was approved when the non-executive directors should have complained about the statements in the Draft ASX Announcement and other statements to like effect. None of them did. The evidence of those non-executive directors ... | 82 |
nsw_caselaw:549ff7443004262463c68ec8:83 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 111 As it has turned out my decision that Ms Hellicar has not satisfied me that she acted honestly in approving the Draft ASX Announcement was not based on findings as to credit. I arrived at that view for the same reasons as I found that Mr Brown and Mr Willcox had not satisfied me that they acted honestly in approvin... | 83 |
nsw_caselaw:549ff7443004262463c68ec8:84 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 114 It was submitted that there was no evidence of damage or harm emanating from the publication of the Final ASX Announcement other than the legal liability on the part of JHIL established in these proceedings.
115 The Final ASX Announcement would not have been understood to convey representations of certainty to so... | 84 |
nsw_caselaw:549ff7443004262463c68ec8:85 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 117 Apart from the current proceedings, in which no penalty or costs order is sought against JHIL, no other proceeding in respect of the Final ASX Announcement has been brought, nor could now be brought successfully given the limitation period.
118 As Austin J observed in Vines 65 NSWLR at 294 [55] of this third comp... | 85 |
nsw_caselaw:549ff7443004262463c68ec8:86 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “It was sufficient for Tadgell J in Commonwealth v Friedrich and for Mandie J in ASIC v Plymin (No 2) to advert to the effect of the defendants' contravening conduct in general terms, without making any specific findings about causation for the purpose of exercising the discretion. Consistently with that approach, it s... | 86 |
nsw_caselaw:549ff7443004262463c68ec8:87 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 119 The publication of the Final ASX Announcement had the effect of maintaining the market price of JHIL shares. Thus, the market operated on a false basis and by reason of the misleading announcement the price of JHIL shares was artificially maintained. That increased the potential harm to JHIL if the misleading state... | 87 |
nsw_caselaw:549ff7443004262463c68ec8:88 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 123 Mr Gillfillan and Mr Koffel were appointed to the JHIL board to provide strategic advice in relation to JHIL’s operations in the US. Those operations had become, and were expected to continue to be, the main source of profitability and revenue for the company.
124 It was submitted that the gravity of the contrave... | 88 |
nsw_caselaw:549ff7443004262463c68ec8:89 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 125 In the manner in which Mr McGregor conducted board meetings, the silence of Mr Gillfillan and Mr Koffel was, in effect, a vote approving the Draft ASX Announcement.
126 The fact that the Draft ASX Announcement would have been approved in any event does not excuse the conduct of the US directors. | 89 |
nsw_caselaw:549ff7443004262463c68ec8:90 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 127 Nor do I consider their breach of duty to be of a lower flagrancy to the conduct of those who attended the 15 February 2001 Meeting in person. There was discussion at the meeting of the Draft ASX Announcement. The statements as to the key message to be communicated to the market made at the meeting bore a correlati... | 90 |
nsw_caselaw:549ff7443004262463c68ec8:91 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 128 I dismiss the applications of Mr Brown, Mr Gillfillan, Ms Hellicar, Mr Koffel, Mr O’Brien, Mr Terry and Mr Willcox for relief under Section 1317S(2) and Section 1318(1). I must make declarations of contravention of Section 180(1) under Section 1317E(1). I will return later in these reasons to the form of the declar... | 91 |
nsw_caselaw:549ff7443004262463c68ec8:92 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1.4 Draft ASX Announcement and Mr Shafron
129 Mr Shafron was one of the company secretaries of JHIL. He is a qualified legal practitioner with Bachelor and Masters of Law degrees from the University of Sydney. He was admitted to practice in Australia and in California. He performed the role of general counsel.
130 ... | 92 |
nsw_caselaw:549ff7443004262463c68ec8:93 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 132 Mr Shafron did not read testimonial affidavits. But that does not mean that he is excluded from seeking relief under Section 1317S(2) or Section 1318(1). But the absence of evidence by him and other persons as to his character and directorial performance leaves him in a worse position than that of Mr O’Brien and Mr... | 93 |
nsw_caselaw:549ff7443004262463c68ec8:94 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 134 As general counsel protecting JHIL from infringement of statutory obligations, it must have been obvious to Mr Shafron, or at least it ought to have been, that if JHIL authorised the release of a public statement concerning separation that was false and misleading, that would be harmful, or potentially harmful, to ... | 94 |
nsw_caselaw:549ff7443004262463c68ec8:95 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (iii) the making of, or the making of an evaluation of, or of a recommendation in relation to, offers under a takeover bid;
(iv) the carrying on of any negotiations, the making of any arrangements or the doing of any other act preparatory to or in any other way related to any matter referr... | 95 |
nsw_caselaw:549ff7443004262463c68ec8:96 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (b) is likely to have the effect of increasing, reducing, maintaining or stabilising the market price of securities;
if, when the person makes the statement or disseminates the information:
(c) the person does not care whether the statement or information is true or false; or
... | 96 |
nsw_caselaw:549ff7443004262463c68ec8:97 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 140 It was submitted that the contraventions found should be considered to be isolated, out of character and probably explained by the presence at the board meeting of more experienced and senior external lawyers from Allens and inattention arising from a profoundly busy and demanding period of work before and at the m... | 97 |
nsw_caselaw:549ff7443004262463c68ec8:98 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 143 It was submitted that since the wording of the Draft ASX Announcement was not a matter for reliance upon management or outside experts, the directors should have known without being told by anyone that the Draft ASX Announcement was too emphatic and not supportable. It was submitted it was not a serious contraventi... | 98 |
nsw_caselaw:549ff7443004262463c68ec8:99 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 145 Gregory John Baxter was the senior vice-president of corporate affairs of JHIL. His name appeared on the Draft ASX Announcement and on the Final ASX Announcement. Announcements to the ASX other than those of a financial nature were drafted by corporate affairs under his supervision.
146 It was submitted that Mr B... | 99 |
nsw_caselaw:549ff7443004262463c68ec8:100 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1.5 Cashflow Model and Mr Shafron
148 In Macdonald (No 11) I found that Mr Shafron had breached Section 180(1) in failing to advise the JHIL board at the 15 February 2001 Meeting that a review of the Cashflow Model by PwC and Access Economics was limited to reporting on the logical soundness and technical correctness... | 100 |
nsw_caselaw:549ff7443004262463c68ec8:101 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 150 Mr Shafron knew, or ought to have known, that the unqualified statements that PwC and Access Economics had advised JHIL and that advice supplemented the company’s long experience in the area of asbestos and formed the basis of determining the level of funding required to meet all future claims was false or misleadi... | 101 |
nsw_caselaw:549ff7443004262463c68ec8:102 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 153 Stephen Gregory Ashe was vice-president public affairs of JHIL. He reported to Mr Baxter. Mr Ashe sent an email to Mr Macdonald, Mr Shafron and Mr Morley. It suggested wording for the reports to be provided by PwC and Access Economics. The wording suggested included a finding that the Cashflow Model was logically s... | 102 |
nsw_caselaw:549ff7443004262463c68ec8:103 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 155 The preparation of the Cashflow Model was the core responsibility of Mr Morley. It was Mr Morley who presented the Cashflow Model to the board meeting. Mr Shafron did not have carriage of the issue of the PwC and Access Economics reviews. It was submitted that responsibility fell much more to either Mr Morley or Mr... | 103 |
nsw_caselaw:549ff7443004262463c68ec8:104 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 158 No contrition is expressed in the submissions made on Mr Shafron’s behalf. But I have already indicated my view on that topic.
159 It was submitted that the most likely inferred explanation of Mr Shafron’s conduct was momentary inattention borne of a confidence that Mr Morley would address the board on the subjec... | 104 |
nsw_caselaw:549ff7443004262463c68ec8:105 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “In establishing the Foundation, James Hardie sought expert advice from a number of firms, including actuaries Trowbridge, Access Economics and PricewaterhouseCoopersThis [sic] advice supplemented the company’s long experience in the area of asbestos and formed the basis of determining the level of funding required to ... | 105 |
nsw_caselaw:549ff7443004262463c68ec8:106 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1.6 DOCI Information and Mr Shafron
164 At the 15 February 2001 Meeting the board resolved to execute a deed of covenant and indemnity (DOCI). Information in relation to the DOCI (DOCI Information) was not notified to the ASX shortly after the board meeting. As JHIL was a listed disclosing entity to which the provisi... | 106 |
nsw_caselaw:549ff7443004262463c68ec8:107 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (b) require the entity to notify the securities exchange of information about specified events or matters as they arise for the purpose of the securities exchange making that information available to a stock market conducted by the securities exchange.
(2) The disclosing entity must not contravene tho... | 107 |
nsw_caselaw:549ff7443004262463c68ec8:108 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “Once an entity is or becomes aware of any information concerning it that a reasonable person would expect to have a material effect on the price or value of the entity’s securities, the entity must immediately tell ASX that information. “Information” includes information a reasonable person would expect an entity to g... | 108 |
nsw_caselaw:549ff7443004262463c68ec8:109 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (d) The information is generated for the internal management purposes of the entity
(e) The information is a trade secret.” | 109 |
nsw_caselaw:549ff7443004262463c68ec8:110 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 166 The DOCI Information of which Mr Shafron became aware by the time of the 15 February 2001 Meeting was that, subject to certain terms and conditions, Coy and Jsekarb provided covenants that they would not make any claim against JHIL arising from or incidental to, the marketing, manufacture, processing, purchase, sal... | 110 |
nsw_caselaw:549ff7443004262463c68ec8:111 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | payments to Jsekarb in each of the years 2001 to 2042 of $278,250 and, under certain conditions, accelerate payments to either or both of Coy and Jsekarb. Fourthly, Coy provided an option by an additional covenant to the “JHIL Shareholder”, defined as the person who was the sole registered holder of all of the issued s... | 111 |
nsw_caselaw:549ff7443004262463c68ec8:112 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 167 In Macdonald (No 11) I found that by failing to advise Mr Macdonald or the board of JHIL that it needed to consider whether JHIL was required to disclose the DOCI Information to the ASX; in failing to obtain advice for Mr Macdonald or the board or provide his own advice to the board as to whether they were required... | 112 |
nsw_caselaw:549ff7443004262463c68ec8:113 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 168 It was submitted that Mr Shafron was entitled to assume that any disclosure obligation that JHIL had would have been the subject of advice by Allens before or at the 15 February 2001 Meeting. It was submitted that default on his part is explicable and was not substantial being consistent with a subjective understan... | 113 |
nsw_caselaw:549ff7443004262463c68ec8:114 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 170 There was evidence that the continuous disclosure obligation was part and parcel of the role and responsibility, not only of a chief executive officer, but also of the chief financial officer and the company’s secretary and general counsel.
171 It was submitted that Mr Macdonald and Mr Baxter were the two senior ... | 114 |
nsw_caselaw:549ff7443004262463c68ec8:115 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 173 It was submitted that the evidence revealed that the failure to disclose the DOCI Information caused the absence in the market of information that would have had a material positive effect on the price of JHIL’s shares reinforcing the positive effect about the statements. But, again, this means that the market was ... | 115 |
nsw_caselaw:549ff7443004262463c68ec8:116 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 176 Again this is a submission I rejected in Macdonald (No 11). The annual report contained a note to the accounts in explanation of a provision of $73.4m in relation to the Foundation. The disclosure made no mention of The Covenants, The Indemnities or The Put Option.
177 The DOCI Information was disclosed to the Un... | 116 |
nsw_caselaw:549ff7443004262463c68ec8:117 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 179 If it were appropriate to consider the second limb of those provisions, it has been said that the continuous disclosure provisions are intended, amongst other things, to prevent selective disclosure of market sensitive information (Australian Securities and Investments Commission v Southcorp Ltd (No 2) [2003] FCA 1... | 117 |
nsw_caselaw:549ff7443004262463c68ec8:118 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | in Re Chemeq Ltd; Australian Securities and Investments Commission v Chemeq Ltd [2006] FCA 936; (2006) 234 ALR 511 at 522-523 [42]-[46]. | 118 |
nsw_caselaw:549ff7443004262463c68ec8:119 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 180 The failure of JHIL to disclose the DOCI Information was flagrant. So was Mr Shafron’s failure to bring the matter to the attention of Mr Macdonald or the board. The legislation requires disclosure of fresh information in a timely fashion. Accurate and timely information is an essential requisite of an informed sha... | 119 |
nsw_caselaw:549ff7443004262463c68ec8:120 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1.7 Cashflow Model and Mr Morley
182 In similar terms to my finding with respect to Mr Shafron on the limited nature of the reviews by PwC and Access Economics, I found in Macdonald (No 11) that Mr Morley also breached his duty under Section 180(1) in failing to advise the 15 February 2001 Meeting of the limited natu... | 120 |
nsw_caselaw:549ff7443004262463c68ec8:121 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 185 Mr Morley took the board through the Cashflow Model. Of the sensitivity table in it, Mr Morley told the meeting that using Trowbridge’s most likely scenario the table showed the assets available from year 10 through to year 51 at varying earnings rates on a pre-tax basis. The table also showed that if the earnings ... | 121 |
nsw_caselaw:549ff7443004262463c68ec8:122 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 187 Mr Morley was aware that neither PwC nor Access Economics had addressed key assumptions in the Cashflow Model. He had received the email from Mr Ashe. He said nothing about these limitations at the 15 February 2001 Meeting.
188 ASIC submitted that while Mr Morley gave evidence, the Court could not be positively p... | 122 |
nsw_caselaw:549ff7443004262463c68ec8:123 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 189 A finding that a person acted honestly for the purposes of Section 1317S(2) and Section 1318(1) is not determined by a self-serving statement to that effect by the person seeking exoneration. The Court will determine the matter on the evidence. The evidence included the testimony of Mr Morley at trial, including le... | 123 |
nsw_caselaw:549ff7443004262463c68ec8:124 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 190 It was submitted that Mr Morley’s character witnesses reinforced a conclusion that the breach of duty by Mr Morley was out of character with the manner in which he customarily performed his duties and militated against the conclusion that in committing the breach he did not act honestly as opposed to carelessly fai... | 124 |
nsw_caselaw:549ff7443004262463c68ec8:125 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 191 I am not prepared to reach those conclusions. Mr Morley knew that PwC and Access Economics had not reviewed key variables in the Cashflow Model. One of those key variables was investment earning rates. Mr Morley explained to the meeting the sensitivity of the Cashflow Model to the adopted investment earnings rate o... | 125 |
nsw_caselaw:549ff7443004262463c68ec8:126 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 193 Mr Morley has failed to establish the first limb of Section 1317S(2) and Section 1318(1) and is not entitled to relief under those provisions.
194 If I be wrong in that view I would, as with other defendants, have rejected relief under one or other of the two discretions in them.
195 If Mr Shafron’s failure to ... | 126 |
nsw_caselaw:549ff7443004262463c68ec8:127 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “Having carefully considered the judge’s reasoning and taking into account his conclusions that what I said was capable of giving a misleading impression, I regret that I did not elaborate further on the PwC and Access Economics reviews. I have always prided myself on my openness and thoroughness in ensuring that all r... | 127 |
nsw_caselaw:549ff7443004262463c68ec8:128 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 198 I dismiss the application of Mr Morley for relief under Section 1317S(2) and Section 1318(1) with respect to his failure to advise the board of JHIL of the limited nature of the reviews by PwC and Access Economics. I will make a declaration under Section 1317E(1) in the form to be dealt with later in these reasons. | 128 |
nsw_caselaw:549ff7443004262463c68ec8:129 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1.8 ABN 60 Information and JHINV
199 At a meeting of the board of directors of JHINV on 25 March 2003 (25 March 2003 Meeting) the transfer of JHIL out of the James Hardie group was approved.
200 As part of a members’ scheme of arrangement approved by this Court on 11 October 2001, JHIL issued to JHINV 100,000 partl... | 129 |
nsw_caselaw:549ff7443004262463c68ec8:130 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 201 The steps approved at the 25 March 2003 Meeting were the cancellation of the partly paid shares by JHIL; a consolidation of JHIL share capital into one fully paid share held by JHINV; the reduction of JHIL share capital by approximately $1.5m and payment of that amount to JHINV; the execution of a trust deed by JHI... | 130 |
nsw_caselaw:549ff7443004262463c68ec8:131 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 203 Allens gave advice in January 2003 that the ABN 60 Information should be disclosed. A number of arguments against disclosure were put to Allens and in a second advice in March 2003 they said that if JHINV correctly held the view that announcing the transaction to the market would not affect the price of its shares ... | 131 |
nsw_caselaw:549ff7443004262463c68ec8:132 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 205 Prior to the 25 March 2003 Meeting the JHINV disclosure committee met to consider whether the transfer of JHIL and the cancellation of the partly paid shares and related transactions should be disclosed. Mr Baxter’s advice to that committee was that it was unnecessary to disclose the transaction to the market. That... | 132 |
nsw_caselaw:549ff7443004262463c68ec8:133 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 206 It was submitted that there was no dishonesty or impropriety on the part of JHINV. The question of disclosure was properly identified by JHINV and was the subject of legal advice and consideration by senior management and the directors. It was submitted that the decision not to disclose was made by a committee of t... | 133 |
nsw_caselaw:549ff7443004262463c68ec8:134 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 207 It had been put to Mr Humphris that if he assumed that the company had assessed the value of potential liability of JHIL at about $12m and it separated JHIL with net assets to provide for those liabilities the transaction would not be a material one. He agreed but said it depended on how good the calculation was.
... | 134 |
nsw_caselaw:549ff7443004262463c68ec8:135 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 210 To look at the question of disclosure solely on the basis of the potential liability of JHIL for asbestos claims, ignores the fact that there was a negative perception in the market and amongst lenders, rational or irrational, as a result of a perceived connection of JHINV to asbestos through its shareholding in JH... | 135 |
nsw_caselaw:549ff7443004262463c68ec8:136 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 212 JHINV has failed to establish the first limb of Section 1317S(2) and is not entitled to the relief it affords.
213 As with the other defendants, if I be wrong in that view, I would have exercised one or other of the discretions in Section 1317S(2) against granting relief.
214 There was no contrition in the subm... | 136 |
nsw_caselaw:549ff7443004262463c68ec8:137 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 216 A reasonable person would have so concluded in light of the negative sentiment of financiers and the market. JHINV had experienced difficulty in renewing loans because of a perceived connection to JHIL and its potential asbestos liabilities. The severing of the connection between JHINV and JHIL was likely to reduce... | 137 |
nsw_caselaw:549ff7443004262463c68ec8:138 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 218 Of the other matters identified by Austin J in Vines 65 NSWLR at 295 [57], while JHINV received legal advice, it failed to address one of the prerequisites to non-disclosure of the ABN 60 Information identified by Allens. It adopted its standard practice of consideration by its disclosure committee, but the committ... | 138 |
nsw_caselaw:549ff7443004262463c68ec8:139 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 2 Declarations
221 A common theme in the submissions with respect to the terms of the declarations that I must make under Section 1317E(1) was the alleged duplication of declarations regarding the same conduct.
222 In Vines v Australian Securities and Investments Commission [2007] NSWCA 126; (2006) 63 ACSR 505 at 5... | 139 |
nsw_caselaw:549ff7443004262463c68ec8:140 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | “In making more than one declaration of contravention, care must be taken not to duplicate conduct declared to constitute a contravention as that may result in a person being penalised more than once for the same conduct. | 140 |
nsw_caselaw:549ff7443004262463c68ec8:141 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | It might well be arguable that, as regards the six declarations of contravention that remain alive and are the subject of this appeal, there is a degree of duplication….” | 141 |
nsw_caselaw:549ff7443004262463c68ec8:142 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | His Honour then cited the above passage in the reasons for judgment of Spigelman CJ.
2.1 Declarations in relation to Mr Macdonald
224 I found that Mr Macdonald, like the non-executive directors, was in breach of Section 180(1) in voting in favour of the Draft ASX Announcement. ASIC seeks a declaration that he knew ... | 142 |
nsw_caselaw:549ff7443004262463c68ec8:143 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 227 I found that Mr Macdonald contravened Section 180(1) in approving the Final ASX Announcement for release, or in failing to advise that it not be released, or in failing to advise that it be amended before being released to remove the respects in which it was misleading.
228 A similar argument was raised with resp... | 143 |
nsw_caselaw:549ff7443004262463c68ec8:144 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 230 ASIC proposes a declaration that says Mr Macdonald knew that the announcement conveyed or was capable of conveying the various matters pleaded and that he knew, or ought to have known, that it was misleading in those respects.
231 Again, it was submitted on behalf of Mr Macdonald that the first part of the declar... | 144 |
nsw_caselaw:549ff7443004262463c68ec8:145 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 234 Submissions that in each case the collocation should be that he “knew or ought to have known” that they conveyed or were capable of conveying the various matters pleaded are rejected. I found that Mr Macdonald was aware that the Edinburgh Representations, the London Representations and the ASX Slides were false or ... | 145 |
nsw_caselaw:549ff7443004262463c68ec8:146 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 236 In its draft declarations, ASIC treats Mr Macdonald’s failure to advise of the limitations in the PwC review as a breach of Section 180(1) separate from his failure to advise of the limitations in the Access Economics review. It was submitted that this constituted duplication. I agree. The impugned conduct was a si... | 146 |
nsw_caselaw:549ff7443004262463c68ec8:147 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | The Court declares that: | 147 |
nsw_caselaw:549ff7443004262463c68ec8:148 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1. The First Defendant contravened s 180(1) of the Corporations Law as carried over into the Corporations Act 2001 (Cth) ( Section 180(1) ) in relation to ABN 60 Pty Ltd (formerly known as James Hardie Industries Ltd) ( JHIL ) by his conduct, as a director and Chief Executive Officer of that corporation, in voting on 1... | 148 |
nsw_caselaw:549ff7443004262463c68ec8:149 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (i) the material available to JHIL provided a reasonable basis for the assertion in the announcement that it was certain that the amount of funds made available to the Medical Research and Compensation Foundation ( Foundation ) would be sufficient to meet all legitimate present and future asbestos claims brought agains... | 149 |
nsw_caselaw:549ff7443004262463c68ec8:150 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (iv) JHIL had received expert advice from PricewaterhouseCoopers ( PwC ) and Access Economics that supported the statement that it was certain that the amount of funds made available to the Foundation would be sufficient to meet all legitimate present and future asbestos claims brought against Amaca and Amaba;
... | 150 |
nsw_caselaw:549ff7443004262463c68ec8:151 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 2. The First Defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation on or about 15 February 2001 when its board of directors voted in favour of a resolution to approve the Draft ASX Announcement and authorise its execution and sending to th... | 151 |
nsw_caselaw:549ff7443004262463c68ec8:152 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 3. The First Defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation, on or about 15 February 2001 in failing to advise its board of directors that the reviews of a cashflow model ( Cashflow Model ) of the funding being made available to mee... | 152 |
nsw_caselaw:549ff7443004262463c68ec8:153 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 4. The First Defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation, in either approving for release to the ASX an announcement ( Final ASX Announcement ), failing to advise that it not be released, or failing to advise that it be amended b... | 153 |
nsw_caselaw:549ff7443004262463c68ec8:154 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (ii) Mr Macdonald believed that it was certain that the amount of funds made available to the Foundation would be sufficient to meet all legitimate present and future asbestos claims brought against Amaca and Amaba;
(iii) all of the directors or at least a majority of them believed that it was cer... | 154 |
nsw_caselaw:549ff7443004262463c68ec8:155 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 5. The First Defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation, on or about 16 February 2001 at a press conference during which he made statements which conveyed that:
(a) it was certain that the amount of funds made avai... | 155 |
nsw_caselaw:549ff7443004262463c68ec8:156 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (d) JHIL had received expert advice from PwC and Access Economics that supported the statement that it was certain that the amount of funds made available to the Foundation would be sufficient to meet all legitimate present and future asbestos claims brought against Amaca and Amaba; and
(e) JHIL did not h... | 156 |
nsw_caselaw:549ff7443004262463c68ec8:157 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 6. The first defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation, on or about 23 February 2001 in either approving for release to the ASX an announcement bearing that date ( 23 February 2001 ASX Announcement ), or failing to advise that ... | 157 |
nsw_caselaw:549ff7443004262463c68ec8:158 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (ii) the material available to JHIL provided a reasonable basis for the assertion in the announcement that it was certain that the amount of funds made available to the Foundation would be sufficient to meet all legitimate present and future asbestos claims brought against Amaca and Amaba;
(iii) h... | 158 |
nsw_caselaw:549ff7443004262463c68ec8:159 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 7. The First Defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation, on or about 21 March 2001 in either approving for release to the ASX an announcement bearing that date ( 21 March 2001 ASX Announcement ), or failing to advise that it not... | 159 |
nsw_caselaw:549ff7443004262463c68ec8:160 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (ii) the material available to JHIL provided a reasonable basis for the assertion in the announcement that it was certain that the amount of funds made available to the Foundation would be sufficient to meet all legitimate present and future asbestos brought against Amaca and Amaba;
(b) he knew or ought t... | 160 |
nsw_caselaw:549ff7443004262463c68ec8:161 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 8. The First Defendant contravened Section 180(1) in relation to JHIL by his conduct, as a director and Chief Executive Officer of that corporation, on and from 15 February 2001 in failing to:
(a) advise the Chairman or the board of JHIL as to whether or not the following information ( DOCI Information ) ... | 161 |
nsw_caselaw:549ff7443004262463c68ec8:162 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (b) seek and consider advice and satisfy himself in relation to whether JHIL was required to disclose the DOCI Information to the ASX;
(c) resolve or determine that JHIL would disclose the DOCI Information to the ASX; and
(d) raise with or propose to the Chairman or the board of JHIL that th... | 162 |
nsw_caselaw:549ff7443004262463c68ec8:163 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 9. The First Defendant contravened Section 180(1) in relation to James Hardie Industries NV ( JHINV ) by his conduct, as a director and Chief Executive Officer of that corporation, on or about 10 June 2002 in either approving for release to the ASX a set of slides ( ASX Slides ), or failing to advise that they not be r... | 163 |
nsw_caselaw:549ff7443004262463c68ec8:164 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | (b) he knew that the ASX Slides were misleading in those respects. | 164 |
nsw_caselaw:549ff7443004262463c68ec8:165 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 10. The First Defendant contravened Section 180(1) in relation to JHINV by his conduct, as a director and Chief Executive Officer of that corporation, in making a presentation in Edinburgh on or about 10 June 2002 during which he made statements which conveyed that:
(a) it was certain or highly likely tha... | 165 |
nsw_caselaw:549ff7443004262463c68ec8:166 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 11. The First Defendant contravened Section 180(1) in relation to JHINV by his conduct, as a director and Chief Executive Officer of that corporation, in making a presentation in London on or about 11 June 2002 during which he made statements which conveyed that:
(a) it was certain or highly likely that t... | 166 |
nsw_caselaw:549ff7443004262463c68ec8:167 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 2.2 Declarations in relation to Mr Shafron
238 The draft declarations proposed by ASIC treats Mr Shafron’s failure to advise that PwC’s review was limited as a distinct contravention of Section 180(1) from his failure to advise the board that Access Economics review was limited. For the reasons set above I reject tha... | 167 |
nsw_caselaw:549ff7443004262463c68ec8:168 | nsw_caselaw:549ff7443004262463c68ec8 | decision | new_south_wales | nsw_caselaw | text/html | 2009-08-20 00:00:00 | Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714 | https://www.caselaw.nsw.gov.au/decision/549ff7443004262463c68ec8 | 2024-05-26T11:20:31.640652+10:00 | 1. The Second Defendant contravened s 180(1) of the Corporations Law as carried over into the Corporations Act 2001 (Cth) ( Section 180(1) ) in relation to ABN 60 Pty Ltd (formerly known as James Hardie Industries Ltd) ( JHIL ) by his conduct, as an officer of that corporation, on or about 15 February 2001 when its boa... | 168 |
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