In this edition, we discuss an infringement notice issued by the Australian Securities and Investments Commission (ASIC) to Fundhost Limited (Fundhost) in respect of alleged false or misleading representations, and the regulatory priorities of the Australian Competition and Consumer Commission (ACCC) for the next financial year. We also examine orders made by the Federal Court of Australia in respect of contraventions of the Australian Consumer Law (ACL) by Mobil Oil Australia Pty Ltd (Mobil) and the Takeovers Panel’s variation to its previous orders made in Identitii Limited [TP 26/006].
In Over the Horizon, we consider the recent decision of the Supreme Court of the United States (SCOTUS) which ruled that certain tariffs imposed by the Trump administration exceeded the authority conferred on the executive.
Regulatory
Fundhost Limited pays $19,800 to comply with ASIC infringement notice in respect of alleged false or misleading representations.
On 18 February 2026, ASIC announced that Fundhost paid $19,800 in relation to representations about the Polen Capital Global Growth Fund (the Fund) in its capacity as responsible entity. Between 15 March 2021 and 20 February 2025, Fundhost (through the Fund’s investment manager) published a performance chart which showed the combined performance of the Fund and another fund (the Polen Capital Focus Growth Strategy Fund) against the MSCI ACWI Net Total Return Index. ASIC alleged that by doing so, Fundhost made a false or misleading representation that the Fund itself had achieved returns exceeding the MSCI ACWI Net Total Return Index. On 29 January 2026, ASIC issued an infringement notice to Fundhost on the basis that ASIC had reasonable grounds to believe that Fundhost had contravened section 12DB of the Australian Securities and Investments Commission Act 2001 (Cth). Payment of an infringement notice is not an admission of liability, but non-executive directors in the financial services industry must be wary of overstating the performance of investment funds in promotional material, as this can attract prompt ASIC regulatory action and pecuniary penalties.
ACCC regulatory priorities for 2026-27
On 19 February 2026, the ACCC announced that its 2026-27 compliance and enforcement priorities will include improving business compliance under new government reforms, scrutinising environmental and sustainability claims (with a focus on greenwashing), and regulating digital markets. ACCC Chair, Ms Gina Cass-Gottlieb, noted that since 1 July 2025, the ACCC has received 31 merger notifications, resulting in 15 approvals and 16 transactions currently under assessment (including two in-depth ‘Phase 2’ reviews). Ms Cass-Gottlieb also reported that to date, the ACCC has met its target of determining 80% of waiver and notification applications within 20 business days. The regulatory focus on environmental and sustainability claims and digital markets comes as no surprise, as a continuation of the ACCC’s 2025-26 priorities.
Legal
Mobil ordered to pay $16 million over misleading fuel claims
On 17 February 2026, the Federal Court of Australia ordered that Mobil must pay $16 million, publish a corrective notice and implement a consumer law compliance program for its officers, employees and representatives, in respect of ACL contraventions. The ACCC commenced proceedings over branding and signage at nine petrol stations in north and central Queensland relating to Mobil’s advertisement of ‘Mobil Synergy Fuel’. Mobil represented that ‘Mobil Synergy Fuel’ was of a substantially different quality to other fuel of the same octane rating and contained additives which delivered benefits such as engine protection, better fuel economy and reduced emissions. Mobil admitted it made false or misleading statements to consumers through branding and signage at the relevant sites. ‘Mobil Synergy Fuel’ was not sold at those sites, and the fuel supplied there was substantially the same as unadditised fuel at other non-Mobil retail sites. The total penalty of $16 million was jointly submitted by the ACCC and Mobil, representing approximately 28.2% of the total value of all unadditised fuel supplied by Mobil across the sites during the period of each contravention.
Takeovers Panel varies Identitii Limited [TP 26/006] orders
On 19 February 2026, the Panel varied the orders made in relation to the affairs of Identitii Limited (Identitii). As discussed in last week’s edition of Boardroom Brief, the Panel made a declaration of unacceptable circumstances in relation to the affairs of Identitii and consequently made orders requiring (among other things) supplementary disclosure to be issued by Identitii. On 18 February 2026, Identitii announced that the underwriting agreement between it and Beauvais Capital Pty Ltd as trustee for the Reginald Hector Trust had been terminated. The Panel varied its orders so that Identitii’s supplementary disclosure did not need to address certain matters that related to the underwriting arrangements. On 20 February 2026, Identitii issued a supplementary offer document.
Over the Horizon
Trump’s tariffs on trial and the race for refunds
On 20 February 2026, the SCOTUS ruled (by a 6-3 majority) that tariffs imposed by US President, Mr Donald Trump, under federal emergency laws exceeded his presidential authority. The proceedings arose from two petitions, brought by small businesses and 12 states and consolidated on appeal, challenging tariffs ranging from 10% to 49% on imports into the US. To impose the tariffs, President Trump declared national emergencies relating to (1) a public health crisis caused by an influx of illegal drugs from foreign countries, and (2) the state of US manufacturing and critical supply chains due to trade deficits with foreign countries, and sought to invoke a power to regulate importation under the International Emergency Economic Powers Act of 1977 (IEEPA). The Court held that the IEEPA does not authorise the US President to impose tariffs, but did not address how revenue already collected should be treated. Modelling by EY predicts that importers of Australian goods could be entitled to more than $1.4 billion in refunds from struck-down tariffs. Manufactured goods (including industrial machinery and medical devices) and agricultural exports (including beef, beverages and horticulture) are expected to have been most affected by tariffs imposed under the IEEPA. Following the ruling, the US President swiftly made a proclamation imposing a 10% surcharge on imports into the US for 150 days from 24 February 2026 under section 122 of the Trade Act of 1974. According to various news outlets, President Trump has indicated via social media that the surcharge may be increased to 15% (although no official proclamation had been made at the time of publication).