James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332

James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332

The Court held that the ASX representations made by JHINV in slide 4 were false in a material particular or materially misleading, and would be understood by the reasonable member of the class as an unqualified assertion that asbestos claims were fully funded, when JHINV knew this was not the case. The ASX representations were in breach of ss 1041E and 1041H as they were likely to induce persons to acquire shares or to maintain or stabilise the market price. However, the oral representations at the Edinburgh and London roadshows were not shown to have the requisite effect due to the small and sophisticated audience. JHINV also breached its continuous disclosure obligation under s 674 by...

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Appeal and Cross Appeal From the Supreme Court of New South Wales / Court of Appeal Judgment
Outcome
Appeal and cross-appeal dismissed; penalty and orders of the trial judge upheld.
Legal Topics
['false or Misleading Statements' 'continuous Disclosure' 'misleading or Deceptive Conduct' 'civil Penalties']
['corporations Law' 'market Misconduct' 'securities Regulation'] ['false or Misleading Statements' 'continuous Disclosure' 'misleading or Deceptive Conduct' 'civil Penalties']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal and Cross Appeal From the Supreme Court of New South Wales / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether certain statements made by James Hardie Industries NV (JHINV) constituted false or misleading statements in contravention of ss 1041E and 1041H of the Corporations Act 2001 (Cth)' 'Whether JHINV contravened continuous disclosure obligations under s 674 of the Corporations Act 2001 (Cth)' 'Whether relief from liability was available under s 1317S of the Corporations Act 2001 (Cth)' "Whether the breach was 'flagrant' and the appropriate penalty and costs orders"]

Ratio Decidendi

The Court held that the ASX representations made by JHINV in slide 4 were false in a material particular or materially misleading, and would be understood by the reasonable member of the class as an unqualified assertion that asbestos claims were fully funded, when JHINV knew this was not the case. The ASX representations were in breach of ss 1041E and 1041H as they were likely to induce persons to acquire shares or to maintain or stabilise the market price. However, the oral representations at the Edinburgh and London roadshows were not shown to have the requisite effect due to the small and sophisticated audience. JHINV also breached its continuous disclosure obligation under s 674 by...

Court Disposition

Appeal and cross-appeal dismissed; penalty and orders of the trial judge upheld.

Orders

  • ['The appeal and the cross-appeal are each dismissed.' "The appellant is to pay 90 per cent of the respondent's costs."]