Australia and New Zealand Banking Group Limited v Australian Securities and Investments Commission

The Australia and New Zealand Banking Group Limited (ANZ) appealed against the primary judge's decision finding that it contravened its continuous disclosure obligations under the Corporations Act 2001 (Cth) (Corporations Act) by not disclosing to the market on the night of 6 August 2015, or before the recommencement of trading in ANZ shares on 7 August 2015, that the Underwriters were to acquire a significant proportion of the shares placed. The Australian Securities and Investments Commission (ASIC) cross-appealed against the primary judge's decision not to order ANZ to pay the statutory maximum penalty for the contravention of s 674(2) of the Corporations Act. The Court was required to determine whether the primary judge erred in finding the pleaded information fell within s 677 of the Corporations Act by failing to construe and apply correctly the words "persons who commonly invest in securities". The Court was also required to determine whether the primary judge erred in finding the pleaded information was material within the meaning of s 677 of the Corporations Act by failing properly to consider additional context which would render it immaterial. Additionally, the Court was required to determine whether the primary judge erred in finding the pleaded information was "information concerning it [the entity]" within the meaning of Rule 3.1 of the ASX Listing Rules (Listing Rules). The Court found that the primary judge did not err in his construction and application of the words "persons who commonly invest in securities". The Court found that the primary judge did not err in finding the pleaded information was material within the meaning of s 677 of the Corporations Act. The Court found that the primary judge did not err in finding the pleaded information was "information concerning it [the entity]" within the meaning of Rule 3.1 of the Listing Rules. Accordingly, the appeal was dismissed, and the cross-appeal was allowed in part. The appellant was ordered to pay the respondent's costs.