03/04/2009 - 11:24

ASIC in legal showdown with FMG, Forrest

03/04/2009 - 11:24

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The corporate watchdog says it will ask the Federal Court to consider disqualifying Andrew Forrest from acting as a director as legal proceedings involving Fortescue Metals Group is set to start on Monday.

ASIC in legal showdown with FMG, Forrest

The corporate watchdog says it will ask the Federal Court to consider disqualifying Andrew Forrest from acting as a director as legal proceedings involving Fortescue Metals Group is set to start on Monday.

The Australian Securities and Investments Commission is seeking civil penalties which could see FMG and Mr Forrest pay a maximum fine of $6 million and $4.4 million respectively.

In the proceeding against FMG, ASIC said the case centres on a series of announcements the company made between August and November 2004.

ASIC alleges that FMG engaged in misleading and deceptive conduct by "overstating the substance and effect of agreements with three Chinese companies" to investors and the market.

During that time, FMG entered into a 20-year offtake deal with Hebei Wenfeng Iron & Steel Co, a 20-year offtake deal with Jiangsu Fengli Group and a 22-year offtake contract with Ping Xiang Iron & Steel Co for its Pilbara iron ore mine.

At the time of the announcements, FMG said all three contracts were binding.

The iron ore miner had also entered into several contracts with other Chinese companies over the construction of rail and port infrastructure for the Pilbara mine.

In relation to Mr Forrest, ASIC alleges he was involved in FMG's alleged breaches and that he breached his duty as a director by failing to ensure that FMG complied with its obligations under the Act.

ASIC claims Mr Forrest was aware there was a significant and growing 'gap' between what the market was told and what actually appeared in the agreements, and claims that Mr Forrest did nothing to rectify the situation.

"ASIC claims the alleged conduct of FMG and Mr Forrest resulted in the markets being seriously misled as to the true status of FMG's project for over six months," ASIC said.

"During this period many millions of shares were traded by both sophisticated and unsophisticated investors - all of whom relied on FMG to provide continuous and accurate disclosure.

"When the true contents of the agreements were disclosed by the media, FMG's share price dropped by more than 25 per cent in one day."

The hearing is before Justice John Gilmour and is set down for five weeks.

At a media briefing in Perth this week, FMG executive director Graeme Rowley said neither himself or Mr Forrest would attend the proceedings next week.

In a separate statement, FMG says it will vigorously defend court action.

"Fortescue's position has not changed since this matter first arose and the company is fully prepared to defend the matter in court," it said.

Fortescue shares closed down 4.21 per cent, or 11 cents, at $2.50.

 

 

 

ASIC's statement is below:

 

 

The Australian Securities and Investments Commission's (ASIC) proceedings against Fortescue Metals Group Ltd (FMG) and its CEO Andrew Forrest will commence in Perth on Monday 6 April 2009. The hearing is before Justice Gilmour and is set down for five weeks.

Tony D'Aloisio, Chairman of ASIC, said the case will examine the responsibility of listed companies and its executives to keep the market properly informed in relation to disclosable agreements.

'Keeping markets properly informed underpins confidence in the integrity of our markets and in doing so, it assists in keeping the cost of capital low which is important as our companies recapitalise,' he said.

The case centres on a series of announcements FMG made to the market between 23 August 2004 and 9 November 2004 concerning certain framework agreements with three major state owned Chinese companies. ASIC alleges that FMG engaged in misleading and deceptive conduct by overstating the substance and effect of agreements with the three Chinese companies, in announcements and media releases made to the market and investors. ASIC also alleges FMG failed to comply with its continuous disclosure obligations under the Corporations Act (the Act) by failing to correct the misleading announcements and disclose the contents of the agreements.

In relation to Mr Forrest, ASIC alleges that he was involved in FMG's alleged contravention and also, that he breached his duty as a director to exercise care and diligence under the Act by failing to ensure that FMG complied with its obligations under the Act.

ASIC claims Mr Forrest was well aware there was a significant and growing 'gap' between what the market had been told and what actually appeared in the agreements, but did nothing to correct the position and instead perpetuated the misleading statements over the six month period - the true content of the agreements was not disclosed until March 2005.

ASIC claims the alleged conduct of FMG and Mr Forrest resulted in the markets being seriously misled as to the true status of FMG's project for over six months. During this period many millions of shares were traded by both sophisticated and unsophisticated investors - all of whom relied on FMG to provide continuous and accurate disclosure. When the true contents of the agreements were disclosed by the media, FMG's share price dropped by more than 25 per cent in one day.

ASIC is seeking civil penalties against FMG and Mr Forrest. The maximum penalties that FMG and Mr Forrest could be ordered to pay is $6 million and $4.4 million respectively.

ASIC has also asked the Federal Court to consider disqualifying Mr Forrest from as acting as a director.

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