Australian Securities and Investments Commission v Helou (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 13 November 2020
• Neutral Citation: [2020] FCA 1650
• Date: 13 November 2020

Federal Court of Australia

Australian Securities and Investments Commission v Helou (No 2) [2020] FCA 1650

File number(s):	VID 682 of 2019
Judgment of:	BEACH J
Date of judgment:	13 November 2020
Catchwords:	CORPORATIONS – continuous disclosure requirements – listed disclosing entity – knowing involvement in contravention of s 674(2) of the Corporations Act 2001 (Cth) – unlisted disclosing entity – knowing involvement in contravention of s 675(2) – disqualification from managing corporations – operation of s 206E – leave to manage select corporations – operation of s 206G – orders made
Legislation:	Corporations Act 2001 (Cth) ss 111AL, 111AP, 206A, 206C, 206E, 206G, 601EB, 674, 675, 677, 1317E, 1322
Cases cited:	Australian Competition and Consumer Commission v Murray Goulburn Co-Operative Co Limited [2018] FCA 1964 Australian Securities and Investments Commission v Helou (2019) 139 ACSR 489 Australian Securities and Investments Commission v Newcrest Mining Ltd (2014) 101 ACSR 46 Australian Securities and Investments Commission v Vocation Ltd (in liq) (No 2) (2019) 140 ACSR 382 Duffy; Re Westgate Ports Ltd (2010) 79 ASCR 276 Grant-Taylor v Babcock & Brown Ltd (in liq) (2016) 245 FCR 402 Re HIH Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 Registrar of Aboriginal and Torres Strait Islander Corporations v Murray [2015] FCA 346
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	218
Date of hearing:	12 November 2020
Counsel for the Plaintiff:	Mr JWS Peters AM QC, Ms N Moncrief and Ms J Findlay
Solicitor for the Plaintiff:	HWL Ebsworth
Counsel for the First Defendant:	Mr J Moore QC and Ms S Hooper
Solicitor for the First Defendant:	Corrs Chambers Westgarth
Counsel for the Second Defendant:	Mr R Craig QC and Mr H Whitwell
Solicitor for the Defendants:	Minter Ellison

ORDERS

		VID 682 of 2019
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	GARY HELOU First Defendant ; BRADLEY HINGLE Second Defendant

order made by:	BEACH J
DATE OF ORDER:	13 NOVEMBER 2020

THE COURT DECLARES THAT:

1. The first defendant, in his position of director, contravened ss 674(2A) and 675(2A) of the Corporations Act 2001 (Cth) (the Act) on various occasions on and from 8 March 2016 until 27 April 2016 by reason of his being knowingly concerned in the contravention of ss 674(2) and 675(2) of the Act by MG Responsible Entity Limited (MGRE) and Murray Goulbourn Cooperative Co. Limited (MG), whereby MGRE and MG failed to disclose that there was likely to be a material decrease in MG’s earnings guidance for FY16 published on 29 February 2016 and that the earnings guidance was unlikely to be achieved from 8 March 2016 until 8.48 am on 27 April 2016.

THE COURT ORDERS THAT:

2. Pursuant to s 206E of the Act, the first defendant be disqualified from managing corporations for the period of 3 years from the date of these orders.

3. The first defendant’s application under s 206G of the Act be heard and determined instanter consequent upon order 2.

4. Pursuant to s 206G of the Act the first defendant have leave to manage the following five corporations:

1. Vanmatt Pty Ltd (ACN 606 327 851);

2. Vanmatt Enterprise Pty Ltd (ACN 168 958 469);

3. 8 Pulses Food Company Pty Ltd (ACN 615 115 976);

4. Proplant Foods Pty Ltd (ACN 638 856 667); and

5. Bee Way Pty Ltd (ACN 168 961 573),

provided that during the period of the first defendant’s disqualification:

1. Vanmatt Pty Ltd (ACN 606 327 851) continues to act solely as trustee of the Garzanne Super Fund;

2. Vanmatt Enterprise Pty Ltd (ACN 168 958 469) continues to act solely as trustee of the Helou Family Trust; and

3. none of the companies listed in (a) to (e) above take any steps to become a “disclosing entity” as defined in s 111AC of the Act.

5. The first defendant pay the plaintiff’s costs of this proceeding in the sum of $30,000 within 28 days of the date of these orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		VID 682 of 2019
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	GARY HELOU First Defendant ; BRADLEY HINGLE Second Defendant

order made by:	BEACH J
DATE OF ORDER:	13 NOVEMBER 2020

THE COURT DECLARES THAT:

1. The second defendant, in his position of chief financial officer, contravened ss 674(2A) and 675(2A) of the Corporations Act 2001 (Cth) (the Act) on various occasions on and from 8 March 2016 until 27 April 2016 by reason of his being knowingly concerned in the contravention of ss 674(2) and 675(2) of the Act by MG Responsible Entity Limited (MGRE) and Murray Goulbourn Cooperative Co. Limited (MG), whereby MGRE and MG failed to disclose that there was likely to be a material decrease in MG’s earnings guidance for FY16 published on 29 February 2016 and that the earnings guidance was unlikely to be achieved from 8 March 2016 until 8.48 am on 27 April 2016.

THE COURT ORDERS THAT:

2. Pursuant to s 206E of the Act, the second defendant be disqualified from managing corporations for the period of 2 years from the date of these orders.

3. The second defendant’s application under s 206G of the Act be heard and determined instanter consequent upon order 2.

4. Pursuant to s 206G of the Act, the second defendant have leave to manage Tank Stream Design Pty Ltd (ACN 095 139 521).

5. The second defendant pay the plaintiff’s costs of this proceeding in the sum of $25,000 within 21 days of the date of these orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1. The present proceeding concerns events relating to Murray Goulburn Co-operative Co Limited (MG), MG Responsible Entity Limited (MGRE) and its directors and officers concerning the non-disclosure of material information relating to securities to the ASX as concerns MGRE (a listed disclosing entity), ASIC as concerns MG (an unlisted disclosing entity), and the market generally.

2. The present proceeding is the last of five proceedings that have been brought in this Court concerning these events, four of which have been in my docket. There have been three regulatory enforcement proceedings, two of which have been brought by ASIC and one which has been brought by the ACCC. The first ASIC proceeding was brought against MGRE seeking declarations and a pecuniary penalty only. It was resolved by another judge of this Court. The present proceeding has been brought against MG’s and MGRE’s former managing director Mr Gary Helou and the former chief financial officer Mr Bradley Hingle seeking declarations and disqualification orders. Previously there had also been an ACCC proceeding which had been brought against MG, Mr Helou and Mr Hingle seeking declarations, pecuniary penalties and disqualification orders, which I disposed of. In addition to the three regulatory proceedings, there have been two class actions. These...