In this edition, we discuss the Australian Charities and Not-for-profits Commission’s (ACNC) guidance on best practice for annual general meetings and board handovers, intervention by the Australian Securities and Investments Commission (ASIC) in a proposed share buy-back with significant control implications and the Federal Court’s finding of misleading conduct by the Mayfair 101 Group and its director James Mawhinney. We also examine an application to the Takeovers Panel concerning the affairs of Bryah Resources Limited (Bryah) and the Panel’s orders for Emu NL (Emu) to hold a new general meeting following procedural irregularities.
In Risk Radar, we discuss key findings released by the ACNC from its review into the cyber security practices of charitable organisations.
Governance
ACNC highlights best practice for annual general meetings and board handovers
The ACNC has issued timely guidance on planning effective AGMs and managing board handovers to reinforce good governance. The Commissioner of the ACNC, Ms Sue Woodward AM, emphasised that a well-run AGM is not only a legal requirement but also an opportunity to engage members and supporters and to build trust. While there are differing approaches to AGM agendas, an agenda should provide clear and accessible information to members, allow for meaningful discussion and facilitate open communication. Ms Woodward further stressed the importance of structured board handovers and encouraged outgoing directors to share knowledge and documentation with incoming board members to ensure continuity and stability. These practices are designed to support robust governance frameworks, reduce the risk of disruption and help boards fulfil their duties effectively. This guidance is a useful reminder that careful planning and open communication at these critical junctures can significantly strengthen organisational resilience and stakeholder confidence.
Regulatory
ASIC intervenes in buy-back with significant potential control implications
ASIC reported in its recent Corporate Finance Update that it intervened in a proposed share buy-back where the CEO and CFO elected not to participate, which could have increased the voting power of the CEO from 27.8% to a maximum of 70.2% and the voting power of the CFO from 11.8% to a maximum of 29.8%. ASIC raised concerns regarding both disclosure and fairness, referencing the principles of Chapter 6 of the Corporations Act 2001 (Cth) and relevant Takeovers Panel decisions. In response to ASIC’s concerns, the company deferred the meeting at which the buy-back was proposed to be approved, agreed to commission an independent expert’s report, enhanced its disclosure in the notice of meeting, imposed a voting restriction on the CEO and increased the buy-back price. ASIC also advised that it was prepared to seek remedial orders in the Takeovers Panel, if necessary. This intervention underscores ASIC’s ongoing scrutiny of buy-backs with material control effects and the importance of robust disclosure when undertaking such transactions.
Legal
Federal Court of Australia finds Mayfair 101 Group director involved in misleading conduct
On 10 July 2025, the Federal Court of Australia found that James Mawhinney, director of the Mayfair 101 Group, was associated with or involved in multiple contraventions of the law by Mayfair 101 Group companies. The Court determined that the companies made false or misleading representations in the marketing of certain financial products, engaged in misleading or deceptive conduct by failing to disclose the suspension of investor redemptions in marketing materials and carried on financial services business without an Australian Financial Services licence. ASIC is now seeking injunctions to restrain Mr Mawhinney from advertising and fundraising through financial products and from removing assets from Australia.
Takeovers Panel receives application in relation to Bryah Resources Limited
On 10 July 2025, the Takeovers Panel announced it had received an application from Bryah in relation to its own affairs. The application follows a series of events beginning with Bryah’s engagement of GBA Capital Pty Ltd (GBA Capital) as lead manager and the completion of a two-tranche placement earlier this year. Subsequently, in late May 2025, Mr Yonglu Yu, a client of GBA Capital, lodged notices under sections 203D and 249D of the Corporations Act 2001 (Cth) (Corporations Act), seeking to remove two of three existing directors and appoint his own two nominees. Bryah subsequently announced a shareholder meeting scheduled for 29 July 2025 to consider these resolutions. Bryah alleges that Mr Yu, together with certain GBA Capital dealers and clients, have acted in concert to acquire a collective voting power of 31.19% in Bryah, in breach of the 20% threshold under section 606 of the Corporations Act, and in breach of certain substantial shareholder disclosure provisions. Bryah is seeking interim orders to restrain further acquisitions by the alleged associates, and final orders including the vesting in ASIC of shares acquired in breach of the Corporations Act, restrictions on voting rights, and corrective disclosure. A sitting Panel has not been appointed and no decision has been made on whether to conduct proceedings.
Takeovers Panel orders new Emu NL general meeting after voting and placement irregularities
On 11 July 2025, the Takeovers Panel made final orders on an application from Wayburn Holdings Pty Ltd in relation to the affairs of Emu. As discussed in an earlier edition of Boardroom Brief, the Panel previously made a declaration of unacceptable circumstances in relation to Emu’s affairs, finding that a placement on the day of an extraordinary general meeting of Emu (EGM) (convened to consider, among other things, the removal of two directors) amounted to, in effect, an unacceptable attempt to retain control. To correct the control issues, the Panel ordered that Emu hold a new meeting to reconsider all the resolutions (except the removal of one director who has since resigned), with the stipulation that the placement shares and any further new shares issued before the new meeting may not be voted. The Panel also added a suite of measures to ensure the integrity of the new meeting: Emu must permit electronic voting, provide pre-filled proxy forms with shareholder identification (but without voting directions) and appoint an independent scrutineer to oversee the treatment of proxies and the validity and counting of all votes. The decision serves as an important reminder on the need for boards to ensure the integrity of meetings.
Risk Radar
Cyber governance: ACNC’s review offers practical lessons for all boards
On 9 July 2025, the ACNC released key findings from its review into cyber security as an emerging risk for charities. While the review focused on the not-for-profit sector, boards should note the ACNC’s findings are broadly applicable and transcend into the private sector. The ACNC highlighted that nearly all charities hold sensitive personal data – from donors, volunteers and staff – and that cyber attacks can erode public trust and cause financial damage. According to the ACNC, boards that performed well had four things in common: strong data governance policies, a culture of cyber awareness and risk management being actively driven and supported by the board, an understanding of the entity-specific cyber risk environment and the use of cyber security resources published by the ACNC, the Australian Cyber Security Centre and the Australian Institute of Company Directors. Further, boards should consider a policy that covers their use of artificial intelligence, in a bid to mitigate security risks. For directors, the takeaway is clear. First, cyber risk is a governance risk for all industries, no matter the sector. Second, cyber resilience starts in the boardroom, regardless of whether or not the company operates in the not-for-profit sector. The ACNC’s Governance Toolkit is a practical starting point for directors seeking to benchmark or improve their organisation’s cyber security defences.