Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing)

The Australian Securities and Investments Commission (ASIC) filed a lawsuit against GetSwift Limited, a company that provided software as a service and was listed on the Australian Securities Exchange (ASX). The lawsuit alleged that GetSwift and its directors made misleading statements to the market about the company's business agreements and its financial performance. The case revolved around the disclosure obligations of GetSwift and its directors under the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth), as well as potential breaches of directors' duties.

The primary legal issues the court had to decide were whether GetSwift and its directors breached their continuous disclosure obligations, whether the directors were knowingly involved in those breaches, whether they failed to exercise their powers and discharge their duties with due care and diligence, and if certain directors were personally liable for misleading and deceptive conduct. The court also considered the materiality of omitted information, the admissibility of a fifth further amended statement of claim, and the standard of proof in civil penalty proceedings.

The court found that GetSwift and its directors breached their continuous disclosure obligations by making misleading statements about the nature and terms of their business agreements and their financial performance. The court held that the omitted information was material and could have influenced investors' decisions. The court rejected ASIC's attempt to rely on a fifth further amended statement of claim, finding that it did not change the overall case. The court found that some directors were knowingly involved in the breaches and that all directors failed to exercise their powers and discharge their duties with the requisite care and diligence. Certain directors were held personally liable for misleading and deceptive conduct. The court's findings were based on an assessment of the evidence and the application of relevant legal principles, including the rule in Jones v Dunkel.

The court ordered the parties to file an agreed minute or competing minutes of order by a specified date and scheduled a case management hearing to address issues of penalty and disqualification orders. The court's decision focused on issues of liability and declaratory relief, with any questions of penalty and disqualification to be determined at a later date.