In this edition, we discuss the exposure draft of the proposed waiver form for use under the new mandatory merger control regime, the $2.8 million in penalties imposed on directors of Open4Sale Global Ltd (Open4Sale) for breaches of disclosure laws and a 15-year injunction on a Mayfair 101 Group director for what the Federal Court described as a “reckless approach” to compliance, exposing investors to significant risk of loss. We also examine the application received by the Takeovers Panel in relation to the affairs of Elanor Commercial Property Fund (ASX:ECF) (ECF).
In Over the Horizon, we explore the New South Wales Environment Protection Authority’s (NSW EPA) proposed suite of climate change reforms, which signal a step-change in regulatory expectations for high emitters and raise further questions for directors around compliance, disclosure and strategic adaptation.
Regulatory
Treasury consults on merger notification waiver form for new merger control regime. On 3 September 2025, Treasury released an exposure draft of the proposed waiver form for use under the new merger control regime. From 1 January 2026, mergers that meet the merger thresholds must be notified to the Australian Competition and Consumer Commission (ACCC). Through the notification waiver process, merger parties can apply to the ACCC to waive this notification requirement for acquisitions that are unlikely to meet the notification thresholds or do not raise competition risks that need further investigation. Further information in relation to the exposure draft, including the information that merger parties will be required to provide to the ACCC in the notification waiver form, is set out in a recent G+T Insight. Submissions on the exposure draft are open until 16 September 2025.
Legal
Federal Court imposes $2.8 million in penalties on Open4Sale directors for disclosure breaches
On 1 September 2025, ASIC announced that the Federal Court of Australia had imposed $2.8 million in penalties on two directors of Open4Sale for breaches of disclosure laws. The Federal Court found that Open4sale, its managing director Simeon La Barrie and Australian director Ewald Hafer, had raised over $1.3 million from 83 investors between March 2019 and July 2023 without providing compliant disclosure documentation. It further noted that pitch decks distributed to potential investors contained unsubstantiated claims of USD$57 billion in projected revenue in five years, despite the company having no income and nearly $9 million in accumulated losses. Further, over $1.4 million of investor funds had been transferred to accounts associated with Mr La Barrie and used for personal expenses. Justice Charlesworth described the conduct as “a disgraceful course of conduct” and, in addition to the penalties imposed, disqualified Mr La Barrie and Mr Hafer from managing corporations for 12 and 8 years respectively and restrained them from future non-compliant fundraising for the same periods. The decision emphasises the importance of satisfying disclosure obligations when raising capital and the potential exposure to directors for non-compliance.
Federal Court imposes 15-year injunction on Mayfair 101 director
On 5 September 2025, ASIC announced that the Federal Court of Australia had handed down final orders restraining James Mawhinney, a director of Mayfair 101 Group, from receiving or soliciting funds and advertising or promoting the marketing of financial products until approximately 2040. The judgment is the capstone to a lengthy saga involving the Mayfair 101 Group, which offered a range of investment products that ultimately left investors facing significant losses. The Federal Court found that Mr Mawhinney exhibited a “cavalier attitude to compliance”, noting that the operations he established and run had exposed investors to “obvious and substantial risk of loss”, which materialised in heavy losses. Notably, the Federal Court found that Mr Mawhinney failed to give proper consideration to how investor obligations would be met, instead relying on raising more funds from new investors to cover existing liabilities. The decision comes after interim restraints were first imposed in August 2020. The Federal Court concluded that there was an unacceptable risk that, unless restrained, Mr Mawhinney would re-enter the financial services sector and again expose the public to significant risk of loss through misleading marketing and inadequate disclosure of material risks. For boards, the message is clear: where governance failures, misleading marketing or undisclosed risks repeatedly endanger investors, courts have indicated a willingness to remove individuals from the market entirely. Directors should ensure that disclosure, liquidity management and compliance frameworks are robust – personal sanctions for lapses can be both severe and enduring.
Takeovers Panel receives application in relation to the affairs of Elanor Commercial Property Fund
On 3 September 2025, the Takeovers Panel received an application from Elanor Funds Management Limited (EFM) as responsible entity of ECF in relation to the affairs of ECF. EFC is the subject of an off-market takeover bid by LDR Assets Pty Ltd as trustee for the LDR Assets Trust (Lederer). The application alleges that Lederer’s bidder’s statement contains material information deficiencies including in relation to its ownership, expertise, and track record, future plans for ECF’s strategy and investments, management expense ratio comparisons and the potential for ECF to be delisted from the ASX. EFM further submits that there are other errors or misstatements in Lederer’s bidder’s statement that Lederer has agreed to address, and it seeks final orders addressing the disclosure deficiencies. The Panel has not yet decided whether to conduct proceedings.
Over the horizon
NSW EPA’s climate change consultation – enhanced regulatory conditions, increased transparency and heightened disclosure obligations
The NSW EPA has recently released its draft consultation papers proposing a range of stringent requirements for proponents of environmental protection licences (EPLs) held by high emitting facilities in NSW. The papers collectively propose, in effect, that proponents will be captured if they are undertaking an activity or operating a premises that requires an EPL and which emit over 25,000 tonnes per year of CO2-e of scope 1 and scope 2 emissions. The papers represent a significant step in the NSW Government’s broader climate change mitigation strategy to, among other things, target net zero by 2050. If captured, prescriptive greenhouse gas limits, annual emissions reporting and enforceable conditions are proposed to apply – including mandatory abatement technologies for coal mines.
These requirements are an Australian first: there is no other Federal or State legislation or regulatory instrument mandating specific technology changes to be implemented. The public disclosure of each facility’s emissions profile is likely to increase scrutiny from investors and stakeholders, thereby heightening board exposure to potential greenwashing allegations should governance, assurance processes and forward-looking disclosures prove inadequate.
Directors are advised to:
monitor and engage with the consultation process
determine whether climate strategies and National Greenhouse and Energy Reporting data prepared at the group level can be accurately mapped or applied to activities covered by an EPL
review offset procurement strategies
evaluate capital expenditure plans for compliance with prescribed technology requirements.
For further information, see our G+T Insight. Other jurisdictions are expected to observe the NSW approach closely; a broader adoption could see these requirements become the de facto standard for larger emitters operating across multiple states. Consultation on the papers is open until 7 October 2025.