On 30 June 2026, Justice Black rejected the Australian Securities and Investments Commission (ASIC)’s case against the former non-executive director and deputy chairman of Regional Express Holdings Limited (Rex), the Hon. John Sharp AM, finding that ASIC had failed to establish that he had breached his statutory duty of care and diligence. ASIC’s claims against the other two non-executive directors were likewise not established.
The proceedings arose from a statement made by Rex to the ASX on 28 February 2023 that it was “optimistic that the Group will have positive operating profits for the full FY23 barring any further external shocks”. In June 2023, Rex revised the forecast to “a Group Operational loss of $35 million”. ASIC alleged that Rex had engaged in misleading and deceptive conduct and breached its continuous disclosure obligations, and alleged that the directors had breached their duties of care and diligence in failing to take reasonable steps to ensure Rex complied with its continuous disclosure obligations.
The result for the non-executive directors stands in contrast to the position of Rex, which was found to have breached its continuous disclosure obligations, and its former executive chair, Lim Kim Hai who admitted liability (with the question of penalty to be determined later). Rex had gone into voluntary administration on 30 July 2024 and did not defend the allegations.
As reported in Lawyerly, the Hon. John Sharp AM released a statement saying he was grateful for the swift decision in this matter by the Supreme Court of New South Wales. He also acknowledged the skill and dedication of his legal team, specifically David Sulan SC and Amelia Smith of Counsel, and Justin Vaatstra, John Mitchell, Zavara Farquhar and Samuel Orchard from Arnold Bloch Leibler.
