Southern Cross Payments Ltd v Australian Securities and Investments Commission [2026] FCAFC 140 — Corporations & Appeal From Liability And Penalty — Barrister AI
Southern Cross Payments Ltd v Australian Securities and Investments Commission
challenge to declarations of contravention, imposition of pecuniary penalties and a disqualification order
misleading representation concerning composition of company revenue
Quick Take
1Where a company's continuous disclosure contravention under s 674(2) consists of an omission, the essential facts of which an accessory must have actual knowledge under ss 674(2A) and 79 are the content of the undisclosed information, its non-availability and the facts making it material. The objective meaning and falsity of a separate misleading representation made on the same date are not essential facts, even where the contravention is declared from that date. The court found it unnecessary to decide whether Productivity Partners qualifies [name withheld] v [name withheld].
2Announcing that a key payment-scheme relationship was suspended and at risk is not equivalent to disclosing that the counterparty has made a final decision to terminate. A counterparty's stated reasons for termination, such as anti-money laundering concerns, may be material in their own right even though the company disputes them. Such reasons can be disclosed with accurate attribution to the counterparty together with the company's rebuttal.
3Reliance on a lawyer's involvement in drafting disclosures or answers to ASX queries assists a director under s 180(1), the s 1309(2) reasonable-steps requirement or in penalty mitigation only to the extent the advice was directed to the adequacy of the disclosure under the Act and rested on complete and accurate instructions. On the facts, close drafting involvement by a solicitor who deferred to the director's superior factual knowledge was insufficient. Whether a person 'ought fairly to be excused' under ss 1317S(2) and 1318(1) attracts correctness review.
