NSW Court of Appeal upholds MAC decision
The NSW Court of Appeal has dismissed Cosette Pharmaceuticals' appeal against the Supreme Court's decision in its dispute with Mayne Pharma, reinforcing the high threshold for establishing a material adverse change (MAC) in a control transaction. The decision provides important guidance for parties negotiating and relying on MAC provisions in transaction documents, particularly when assessing financial performance against forecasts.
A recent G+T Insight examines the court’s decision and its implications for MAC clauses, financial forecasts and transaction certainty.
While hostile takeover bids remain rare in Australia, aggressive tactics in approaches are on the rise
On 1 October 2026, the Australian Institute of Company Directors published an article providing directors with takeaways amidst the rise of ‘hostile tactics’ in takeovers. The AICD reports that tactics such as obtaining pre-bid stakes, leveraging support from a significant target shareholder or threatening to publicly disclose non-binding indicative offers are being increasingly used by bidders to pressure target boards to engage with an offer.
According to the article, true hostile bids (that is, made directly to shareholders without the target board’s blessing) remain uncommon, with only three such bids made in Australia last year. For target boards, being prepared for a takeover scenario involves having a clear idea of the company’s valuation and having financial, legal and communications advisers lined up with conflicts cleared. This allows boards to make tactical calls (such as whether to disclose an approach at all and the extent to which due diligence should be granted) in a well-informed manner on their merits rather than under time pressure.
Many thanks to Justin Mannolini, Ariane Moir and Rachael Griffiths-Szeto for this insight.
ACCC explains how it will enforce merger notification and reissues its information-gathering guidelines
Since 1 January 2026, businesses must notify the ACCC of acquisitions that meet the notification thresholds under the Competition and Consumer Act 2010 (Cth) (CCA) and must wait for approval before completing the acquisition, unless a waiver or exemption applies. On 8 October 2026, the ACCC published a fact sheet on how it will enforce the new regime. When deciding whether to go to court over a deal that should have been notified, the ACCC considers factors such as deal size, the industry affected, why the deal was not notified, the public interest, any remedy offered and the deterrent value of action. Consequences can include penalties, divestiture or the court voiding the deal.
Since 16 September 2026, non-notified deals are no longer automatically void. Instead, the Federal Court may void them on the ACCC's application. The same amendments clarify the ‘control’ exemption and allow expired approvals to be extended, as we address in recent G+T insight. Deals below the thresholds can still be challenged under section 50 of the CCA if they are likely to substantially lessen competition.
On 7 October 2026, the ACCC reissued its guidelines on section 155 of the CCA. This is its power to compel information, documents and evidence in both merger reviews and investigations. Directors should ask two questions. First, who decides that a deal does not need to be notified, and on what advice? Second, could the company respond to an ACCC notice quickly and completely, while protecting privileged material? Frequent acquirers and companies doing asset or minority-stake deals should take particular care, as the regime is not limited to acquisitions of control.
Many thanks to Justin Mannolini, Ariane Moir and Rachael Griffiths-Szeto for this insight.
Government consults on raising the reporting threshold for large proprietary companies
On 19 October 2026, the Government announced it is consulting on proposed changes to increase the financial thresholds used to determine whether proprietary companies are small or large, which in turn determines which companies are required to prepare audited financial reports, directors’ reports and sustainability reports. These thresholds have not increased since 2019 and the changes were announced as part of the 2026–27 Budget. Consultation closes on 2 November 2026.
The exposure draft of the Corporations Amendment (Proprietary Company Thresholds) Regulations 2026 (Cth) (Amending Regulations) proposes to amend the Corporations Regulations 2001 (Cth) to increase the thresholds as follows for financial years beginning on or after 1 July 2027:
- for consolidated revenue, from $50 million to $100 million
- for consolidated gross assets, from $25 million to $50 million.
There is no increase proposed for the current employee threshold of 100 or more.
The exposure draft Regulations also propose to include a new Regulation 1.0.02C to update the small business guide in Part 1.5 of the Corporations Act to reflect the revised thresholds.
According to the explanatory materials, the proposed changes “modernise the thresholds for smaller companies, balancing company growth with their obligations to report on their financial position and climate-related financial risks”, and the Commonwealth Treasurer has indicated that the proposed amendments would save businesses over $210 million in compliance costs.
Former Rex chief executive disqualified for four years and fined over misleading profit forecast
On 20 October 2026, the NSW Supreme Court disqualified Mr Lim Kim Hai (former chief executive officer and executive chair of Regional Express Holdings Limited (Rex)) from managing corporations for four years and ordered him to pay an $800,000 penalty for breaching his directors’ duties and for his involvement in Rex’s continuous disclosure breaches.
On 20 May 2026, Mr Lim admitted that:
- Rex had no reasonable grounds for its 28 February 2023 ASX announcement forecasting positive operating profits for the 2023 financial year; and
- from 28 February 2023, Rex should have disclosed that it had no reasonable basis for its profit forecast, but did not do so until 20 June 2023, when it forecast a $35 million operational loss.
Justice Black accepted the penalty agreed between ASIC and Mr Lim, noting that the contraventions were serious and that Mr Lim held a senior role.
In a separate judgment delivered on 30 June 2026, the Court found that Rex had breached its continuous disclosure obligations from 14 April 2023, when it no longer had reasonable grounds to expect positive operating profits for FY23. However, the Court dismissed ASIC's misleading conduct case against Rex and found that three former non-executive directors had not breached their directors' duties.
On 23 October 2026, ASIC sought leave to appeal the decision in respect of Rex’s non-executive directors.
The proceedings highlight the governance risks arising from the concentration of executive responsibilities and financial information in one individual. Mr Lim held the roles of chief executive officer, executive chair and reporting officer under Rex's continuous disclosure policy, and received detailed financial information that was not consistently communicated to the board between meetings.
Examples of how boards may mitigate this risk include the separation of the chair and chief executive roles, requiring independent sign-off on market guidance, giving all directors regular management accounts and setting triggers for prompt reporting where results depart from published guidance.
ASIC consults on implementation of new digital asset laws
On 15 October 2026, ASIC released a Consultation Paper 392 Digital asset law reform implementation: Proposed standards and guidance (CP 392), outlining its proposed approach to implementing the Corporations Amendment (Digital Assets Framework) Act 2026 (Cth) (DAF Act). Consultation closes on 27 November 2026.
The DAF Act creates two new financial products from 8 April 2027: digital asset platforms (DAPs) under which an operator possesses digital tokens on behalf of clients, and tokenised custody platforms (TCPs), under which an operator holds underlying assets (such as gold or other digital tokens) and issues digital tokens representing rights to those assets.
CP 392 outlines ASIC’s proposed standards for complying with the new framework and includes an explanation of how the law applies to platform operators, the relevant authorisations required and obligations for Australian financial services (AFS) licensees.
A recent G+T Insight provides a detailed analysis of the consultation, breaking down ASIC’s four significant proposals, discussing its broader proposals and what this currently means for platform operators, custodians and existing AFS licensees.
Data centres under new rules: how Victoria’s plan compares across Australia
Australia’s data centre regulatory landscape is evolving. The Victorian Government’s recently released Sustainable Data Centre Action Plan introduces some of the country’s most detailed requirements for data centre development, covering site selection, renewable energy, water use and community benefits.
With proposed mandatory national standards expected in 2027, understanding the differences between jurisdictions is increasingly important for investors, developers, operators and financiers.
A recent G+T Insight compares data centre policies across Australia, highlighting key differences in planning, approvals, energy and water requirements, and what they mean for project delivery and investment decisions.
Scope 3 in scope: what the High Court’s first decision means for resource project approvals
The High Court of Australia has handed down its first climate-related judgment, clarifying how Scope 3 greenhouse gas emissions must be considered in resource project approvals under NSW planning law.
In MACH Energy Australia Pty Ltd v Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc [2026] HCA 35, the High Court dismissed MACH Energy's appeal by a 3:2 majority, finding that the consent authority had failed to consider whether to impose conditions to minimise the project's Scope 3 emissions in accordance with its statutory obligation to do so.
The decision reinforces the application of existing planning law requirements in NSW, rather than materially expanding any obligations. However, it still has important implications for resource project proponents, particularly those with pending development applications or projects involving significant downstream emissions.
A recent G+T Insight analyses:
- the High Court's findings and what they mean for Scope 3 emissions assessments
- how the recent Hunter Valley Operations approval illustrates an approach to considering Scope 3 conditions
- practical steps proponents can take to address Scope 3 emissions in project applications, approvals and commercial planning.
Cyber resilience: securing Australia’s energy transition
As Australia's energy systems become increasingly digital and interconnected, new opportunities in distributed generation, battery storage and AI-enabled forecasting are bringing heightened cyber security risks.
Cyber resilience is no longer just a technology issue. From operational resilience and supply chain security to safety and governance, organisations must consider how emerging cyber risks affect critical infrastructure throughout its lifecycle.
A recent G+T Insight explores what these evolving risks mean for boards, investors and energy companies, and why embedding cyber resilience into infrastructure strategy is essential to the long-term operation of energy assets.
Fundraising without borders: the push for charitable fundraising law harmonisation
On 9 October 2026, the Charities and Associations Law (Miscellaneous) Amendment Act 2026 (Tas) received Royal Assent, marking a further step towards a more consistent national framework for charitable fundraising. Once the amendments commence, charities registered with the Australian Charities and Not-for-profits Commission (ACNC) will not need separate approval to fundraise in Tasmania. However, notification requirements to the Tasmanian regulator will still apply for charities that are not incorporated in Tasmania or do not have their principal office there.
Once Tasmania’s reforms commence, every jurisdiction that regulates charitable fundraising will have a deemed licence model in place for ACNC-registered charities (noting that the Northern Territory does not regulate charitable fundraising). However, notification requirements and other conditions still vary between jurisdictions, and not every state has implemented the National Fundraising Principles. Further, charitable fundraising requirements generally regulate the activity of fundraising rather than an entity type. This means organisations undertaking charitable fundraising that are not registered charities are still captured by an overly complex and varied regime, without the benefit of the deeming provisions. Organisations conducting fundraising across multiple jurisdictions must therefore continue to assess their compliance obligations under applicable state and territory laws.
A recent G+T Insight provides further detail, including a state-by-state guide to fundraising licence deeming provisions for registered charities.