In this edition, we cover how the Australian Securities and Investments Commission (ASIC) took action against Fiducian Investment Management Services Limited (Fiducian), resulting in a Supreme Court of New South Wales penalty over the operation of an environmental, social and governance (ESG)-marketed fund. In Regulatory, we cover the Australian Competition and Consumer Commission's (ACCC) second conditional clearance under the mandatory merger regime. In Legal, we consider the Federal Court's findings against McPherson's Limited (McPherson's) (ASX: MCP) and its former chief executive officer (CEO) on continuous disclosure and directors' duties.
In Over the Horizon, we consider the High Court's hearing of the Bitcoin property appeal in Poulton v Conrad and what it means for companies that hold or deal in digital tokens.
Governance
Fiducian ordered to pay $7.3 million penalty over a sustainability-branded fund.
On 12 August 2026, ASIC announced that the Supreme Court of New South Wales had ordered Fiducian to pay a $7.3 million penalty for breaching its duty to act with care and diligence as the responsible entity of the Diversified Social Aspirations Fund, and for conduct liable to mislead the public about the fund's ethical objectives and about monitoring of its investments. Between October 2019 and May 2024, Fiducian made representations about the nature of the fund’s investments (including that the fund would not invest in companies that met certain criteria), and made representations that the fund’s exposure would be routinely monitored for compliance with its ethical investment objectives. However, Fiducian invested the fund in underlying funds and did not monitor the fund for compliance with representations about the fund’s stated ethical investment objectives. The Court found that Fiducian did not have reasonable grounds to make representations about the nature of the fund’s investments or its oversight of the fund. Justice Nixon noted that Fiducian had documented policies and procedures but did not follow the processes in managing or operating the fund. Directors should note that greenwashing remains an ASIC enforcement priority, and this decision is a reminder that documented policies are a first step, but compliance processes must be actively implemented and monitored. The facts underlying any public sustainability claims should be regularly reviewed, with oversight to qualify or withdraw a claim if those facts change.
Regulatory
ACCC determines to approve acquisition of liquor businesses under Phase 1 review, subject to divestiture conditions.
On 12 August 2026, the ACCC approved Black Rhino Group Pty Ltd's (Black Rhino) proposed acquisition of the Club Hotel Motel Roma and associated bottle shop businesses and properties, subject to conditions that Black Rhino must either divest an existing bottle shop that it operates or divest a bottle shop it seeks to acquire to an ACCC-approved purchaser before completion. The ACCC noted that without the divestiture condition, the proposed acquisition would reduce the number of bottle shop owners in Roma from three to two, substantially lessening competition in an already concentrated local market for off-premises takeaway liquor. ACCC Commissioner Dr Philip Williams, said the divestiture condition maintains the current level of competition between bottle shops in the town. The determination illustrates that seemingly modest transactions may attract ACCC competition concerns where new entry and expansion into a relevant market are unlikely. In such circumstances, boards should be aware that the ACCC may require an undertaking to divest overlapping assets, in which case the need to identify and secure a suitable purchaser can materially affect transaction certainty and the deal timetable.
Legal
McPherson’s failed to correct earnings guidance; former CEO breached duty of care.
On 13 August 2026, ASIC announced that the Federal Court had found that McPherson's breached continuous disclosure laws and engaged in misleading or deceptive conduct in connection with its October 2020 profit forecast. The Court found that by 12 November 2020, following the ’11/11’ online sales event in China, McPherson's knew that sales and purchasing forecasts for its Dr LeWinn’s skincare range were significantly below expectations and that the profit forecast no longer had a reasonable basis. Despite this, McPherson's did not correct the market until it downgraded and withdrew its earnings guidance on 1 December 2020, and the share price then fell by 34.5%. The Court also found that former CEO and managing director Mr Laurence McAllister breached his duty of care and diligence under section 180(1) of the Corporations Act by failing to take adequate steps to prevent the company's contraventions, and that he authorised the provision of false or misleading information to the ASX. ASIC Chair Ms Sarah Court, said the decision “reinforces that listed entities must act promptly when information emerges that materially alters previously disclosed earnings guidance.” The matter returns to Court for a hearing on penalty and relief. Directors should keep in mind that any material movement in internal forecasts should trigger an immediate assessment of whether published guidance still has a reasonable basis – and that assessment and its reasoning should be documented contemporaneously.Over the Horizon
High Court hears Bitcoin property appeal.
On 13 August 2026, the Full Court of the High Court heard the appeal in Poulton v Conrad, an appeal from the Full Court of the Supreme Court of Tasmania. The central issue is whether Bitcoin is property capable of being possessed, and if so, whether holders can access proprietary remedies (such as claims for conversion and detinue) when tokens are misappropriated. The Tasmanian Full Court had dismissed the appeal on a procedural ground, so its endorsement of the view that control of private keys is sufficient for Bitcoin to be ‘possessed’, departing from Re Blockchain Tech Pty Ltd [2024] VSC 690, was merely ‘obiter’ (meaning, ‘not binding’). The High Court reserved judgment.
This question matters well beyond cryptocurrency businesses. Whether a token can be ‘possessed’ drives custody arrangements, proprietary remedies on misappropriation, and a company’s position if its platform becomes insolvent. Boards with any token exposure, including through treasury holdings, loyalty programs or tokenised settlement arrangements, should consider three questions ahead of judgment: on what contractual terms does the company hold its tokens and who controls the private keys; what remedies would be available if tokens were lost or misappropriated; and whether the company's insurance, security and accounting treatments assume a characterisation the High Court may not adopt.