This is a service specifically targeted at the needs of busy non-executive Directors. We aim to give you a ‘heads up’ on the things that matter for NEDs in the week ahead – all in two minutes or less.

In this edition, we discuss ASIC’s enforcement priorities for 2023 and remind directors of the imminent deadline to obtain director identification numbers.

We also turn to the application before the Takeovers Panel in relation to Lincoln Minerals, the Federal Court’s judgement against NAB in relation to unconscionable conduct over account fees and the ACCC’s proceedings against Dell for misleading conduct.

In Over the Horizon, we discuss the recent speculation on China’s zero-COVID 19 policy and the upcoming decision by the United States in relation to Chinese-listed stocks.

GOVERNANCE & REGULATION

ASIC announces Enforcement Priorities for 2023. On 3 November 2022, ASIC announced its Enforcement Priorities for 2023, which will include enforcement action on greenwashing and predatory lending, and a continuing focus on disrupting investment scams.  While ASIC’s specific areas to target will change from year to year, in keeping with shifting economic factors and the volatile risk environment, ASIC notes five enduring priorities will remain: (1) misconduct damaging to market integrity; (2) misconduct impacting First Nations people; (3) misconduct involving high risk of significant consumer harm; (4) systematic compliance failures by large institutions; and (5) new or emerging conduct risks.  As discussed in last week's edition of Boardroom Brief, ASIC will also place an enforcement priority on protecting Australians from investment scams and high-risk investment products, including crypto assets.  See ASIC media release.

Deadline approaching for directors to obtain director identification numbers.  Company directors and other eligible officers appointed under the Corporations Act 2001 (Cth) (Corporations Act) who were appointed on or before 31 October 2021 must apply for a director identification number (DIN) by 30 November 2022. See ABRS website. The Australian Taxation Office also published a video demonstrating how to apply for a DIN.  Further, directors appointed under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) from 1 November 2022 must apply for a DIN prior to their appointment. Directors appointed on or before 31 October 2022 have until 30 November 2023 to apply.

LEGAL

Takeovers Panel receives application in relation to the affairs of Lincoln Minerals Limited (Lincoln).  Following last week’s application by Olary Holdings Limited (see last week's Boardroom Brief), the Panel has received a further application by Quantum Graphite Limited (Quantum) in relation to the affairs of Lincoln.  Lincoln is the subject of an off-market takeover bid by Quantum for all the ordinary shares in Lincoln. On 5 October 2022, Lincoln lodged its target's statement in respect of Quantum's takeover bid and, on 12 October 2022, a notice of meeting seeking shareholder approval to undertake an entitlement offer.  Quantum submits that the entitlement offer is a frustrating action with a control effect contrary to the principles in Chapter 6 of the Corporations Act and that there are unacceptable disclosure deficiencies in Lincoln's target's statement.  Quantum seeks interim orders including that Lincoln address the alleged disclosure deficiencies in the target’s statement and final orders that Lincoln not proceed with the entitlement offer unless certain conditions are met.  A sitting Panel has not been appointed at this stage and no decision has been made whether to conduct proceedings.  See Takeovers Panel media release.

NAB found guilty of unconscionable conduct over account fees.  The Federal Court has found that National Australia Bank Ltd (NAB) engaged in conscionable conduct by continuing to charge customers periodic payment fees despite NAB knowing of the overcharges.  It was alleged that between February 2015 and February 2019, NAB charged periodic fees to some customer who were entitled to an exemption or charged higher fees than it should have, leading to a total overcharge of $365,454 in periodic payment fees.  Justice Derrington said NAB ‘took advantage of the customers’ continuing lack of knowledge, and acted in its own self-interest by continuing to operate a system which it knew wrongfully deducted sums from its customers’ accounts’ and that ‘this conduct fell so far below the standards required of a bank’s obligations to its customers that it was unconscionable’.  A hearing to determine the scope of relief and penalties will follow.  See Australian Securities and Investments Commission v National Australia Bank Limited [2022] FCA 1324.

ACCC commences proceedings against Dell for allegedly misleading consumers about the cost of add on monitors.  The ACCC has commenced Federal Court proceedings against Dell Australia Pty Limited (Dell) for purportedly making false or misleading representations regarding the price of monitors that consumers could add on to purchases of its computers.  The ACCC has alleged that from at least August 2019 to 16 December 2021, Dell made false or misleading representations about the prices of monitors and the potential savings when monitors are purchased with computers.  The ACCC alleges the monitors were not sold for the ‘strikethrough’ price shown to customers for most of the relevant time and, in some cases, the add-on price was more expensive than if the monitor was bought on a stand-alone basis.  See ACCC media release.

OVER THE HORIZON

Grand opening of China’s markets?  Last week, news broke of visitors at Shanghai Disney Resort being locked in the park in order for officials to administer COVID 19 testing.  Yet, in stark contrast, speculation surfaced of a potential end to China’s zero-COVID 19 policy (which has been repackaged as “dynamic-clearing”).  Market participants were quick to jump on the speculation, tipping Chinese stocks to bounce off the back of the hopes of the reopening of China’s markets.  The speculation led to stock indices in Shanghai and Hong Kong having their best gains in at least two years.  However, the National Health Commission of the People's Republic of China (CNHC) were quick to shoot down any speculation.  In an official announcement, the CNHC doubled down on its commitment to eliminate COVID 19.  Which begs the question, is there any end in sight?  The timing of any potential reopening of China’s markets is particularly intriguing given the US set to determine in the next two months whether it will allow over 200 US-listed Chinese firms to retain their presence in American markets.