In this edition, we discuss proceedings commenced by the Australian Competition and Consumer Commission (ACCC) against Bupa HI Pty Ltd (Bupa), the Takeovers Panel’s decision to decline to conduct proceedings in relation to the affairs of Mayfield Childcare Limited (ASX: MFD) (Mayfield). We also provide an update on various applications to the Panel in relation to the affairs of Keybridge Capital Limited (ASX: KBC) (Keybridge) and Yowie Group Ltd (ASX: YOW) (Yowie).
In Over the Horizon, we comment on the challenges market participants must grapple with in the new financial year.
Regulatory
ACCC takes legal action against Bupa for misleading health insurance practices
On 30 June 2025, the ACCC announced it had commenced proceedings in the Federal Court of Australia against Bupa for breaches of the Australian Consumer Law. Bupa has admitted to engaging in misleading or deceptive conduct and making false or misleading representations by dishonestly advising members that they were not entitled to private health insurance benefits for their entire claim. It has further admitted to engaging in unconscionable conduct in connection with its assessment of 388 claims for treatments partially covered by a private health insurance policy. Bupa has already paid over $14 million in compensation to affected members and faces a proposed $35 million penalty, which is subject to the approval of the Court. ACCC Chair, Ms Gina Cass-Gottlieb, noted that “Bupa should have invested in the necessary systems, processes and training to prevent [the breaches]”. These proceedings underscore the importance of robust compliance systems, particularly in consumer-facing industries.
Legal
Takeovers Panel declines to make declaration of unacceptable circumstances in relation to the affairs of Mayfield Childcare Limited
On 26 June 2025, the Panel declined to make a declaration of unacceptable circumstances in response to an application from Mayfield in relation to its affairs. As noted in a previous edition of Boardroom Brief, Mayfield’s application concerned alleged undisclosed associations between certain persons in the context of an upcoming annual general meeting, at which resolutions concerning the composition of its board will be considered. The Panel considered that the application was not brought within two months after the allegedly unacceptable circumstances occurred and decided not to exercise its discretion to extend this deadline. However, it did refer possible breaches of the ‘20% rule’ and the substantial holder provisions of the Corporations Act 2001 (Cth) (Corporations Act) to ASIC for further investigation.
Takeovers Panel declines to conduct review proceedings in relation to the affairs of Keybridge Capital Limited
On 26 June 2025, the Panel declined to conduct proceedings on a review application from Yowie. Yowie alleged that Keybridge’s use of a section 249F notice to convene a meeting to change the composition of Yowie’s board of directors constituted a frustrating action by triggering a condition to Yowie’s off-market takeover bid for Keybridge. The review Panel considered that Yowie was aware of the likelihood that Keybridge might seek to alter the composition of the Yowie board when it announced its takeover bid and, accordingly, did not consider that there was a likelihood of that conduct being found to be unacceptable (despite any frustrating action). The Panel will release its full reasons for both decisions in due course.
Takeovers Panel makes interim orders in relation to the affairs of Keybridge Capital Limited and Yowie Group Ltd
On 26 June 2025, the Panel made interim orders on an application from Keybridge, restraining Yowie from processing acceptances received under its off-market takeover bid for Keybridge, or declaring its off-market takeover bid for Keybridge unconditional, pending the determination of the proceedings for up to two months from the date of the interim orders. The orders are designed to maintain the status quo while the Panel considers the two applications from Keybridge (discussed in a previous edition of Boardroom Brief) regarding the bid’s effect on its own affairs and the affairs of Yowie. Keybridge broadly submits in those applications that the conditions to Yowie’s takeover bid for Keybridge, being in effect a 35% minimum acceptance condition and a condition that Keybridge no longer controls Yowie, are for the collateral purpose of bypassing section 259C(1) of the Corporations Act and are designed to dilute Keybridge’s shareholding in Yowie to below 50% and to entrench the Yowie board. The interim orders do not indicate any final decision on the merits and the Panel will make its decision on the applications in due course.
Takeovers Panel receives application in relation to the affairs of Keybridge Capital Limited
On 27 June 2025, the Panel received an application from Mr Nicholas Bolton in relation to the affairs of Keybridge in the context of an off-market takeover bid by Yowie, proposed Yowie board changes and a Keybridge funding facility involving a default provision which would be triggered by the financiers ceasing to comprise the majority of directors in Keybridge. Mr Bolton submits (among other things) that the financiers’ nominee directors of Keybridge (who comprise the majority of the Keybridge board) are ‘participating insiders’ and should not be involved in decision-making relating to Yowie’s bid, and that because of the conduct of the financiers’ nominee directors, shareholders will be denied access to a genuine opportunity for liquidity in their shares to exit into a takeover bid. Mr Bolton sought interim orders that Keybridge be prevented from voting at the relevant Yowie shareholder meeting, or alternatively that any vote cast by Keybridge and influenced by the financier nominee directors be void. The Panel declined to make interim orders due to the late timing of the application, given the Yowie shareholder meeting was being held that day and the facts relevant to the matter had been in existence since 6 June 2025. The Panel noted a sitting Panel may consider subsequent orders if necessary.
Over the Horizon
Momentum meets market realities as new financial year dawns
The landscape greeting market participants as the new financial year dawns is marked by both renewed optimism and persistent regulatory complexity. The ASX has delivered its strongest annual return since the COVID-19 pandemic, with the S&P/ASX 200 Index climbing 9.7% over the past 12 months, buoyed by robust momentum and resilient investor sentiment despite global uncertainties and geopolitical headwinds. Yet, while both IPO and M&A activity appears to be ramping up, the outlook remains unclear, with regulatory scrutiny and valuation challenges likely to continue to test even the most seasoned dealmakers. Meanwhile, global asset managers are recalibrating risk exposure, with some steering away from Australian equities in favour of emerging markets, casting a question mark over the growth prospects of Australia’s capital markets. As boards set their sights on the year ahead, the challenge will be to harness the momentum of recent gains while continuing to effectively navigate the evolving regulatory, economic and geopolitical challenges that will shape the next fiscal chapter of Australia’s markets.