ob体育 has commenced civil penalty proceedings in the Federal Court against Noumi Limited (formerly Freedom Foods Group Limited), its former managing director and CEO Rory Macleod and its former CFO and company secretary Campbell Nicholas for alleged continuous disclosure failures, breaches of company director and officer duties, and false or misleading conduct.聽
ob体育 Deputy Chair Sarah Court said, 鈥楧irectors and officers have a fundamental responsibility to ensure that their organisations comply with the law. However, in this case ob体育 alleges Freedom Foods鈥� former CEO and CFO misled investors, auditors and directors, and allowed their company to breach continuous disclosure laws by failing to disclose a significant write-down, leading to an uninformed market.鈥櫬�
Freedom Foods is alleged to have failed to disclose material information about the value of inventories in its financial reports for the full year ending 30 June 2019 and the half year ending 31 December 2019.聽
It is also alleged to have failed to disclose material information about its sales revenue, gross profit and profit after tax in its financial report for the half year ending 31 December 2019.聽聽
ob体育 alleges that Mr Macleod and Mr Nicholas were involved in Freedom Foods鈥� failures to disclose this information and that by allowing these failures, they breached their duties as a director and officer.聽
ob体育 further alleges that Mr Macleod gave false or misleading information to directors, auditors and shareholders of Freedom Foods, as well as the ASX, by representing that the full year and half year reports were accurate.聽
Mr Nicholas is also alleged to have provided false or misleading information to Freedom Foods鈥� auditors and directors.聽聽
Deputy Chair Court said that combatting governance failures is a key priority for ob体育.聽
鈥榃hen directors and officers fail in their obligations, as we allege in this case, they not only cause harm to investors by denying them the information they are entitled to, they also erode confidence in Australia鈥檚 financial markets. ob体育 is continuing its focus on potential breaches of company officer and director duties, and we will continue to take court action seeking penalties and other sanctions in appropriate matters鈥� she said.聽
ob体育 is seeking declarations of contravention, pecuniary penalties, disqualification orders and costs.聽
The date for the first case management hearing is yet to be scheduled by the Court.聽
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Noumi is an Australian company listed on the ASX in the business of manufacturing and selling dairy and plant-based beverages and nutritional products. Prior to 2021, Noumi also manufactured and sold cereals and snack food products.聽
Noumi traded as Freedom Foods until 30 November 2021. At the time of the alleged contraventions outlined in this media release, Noumi was known as Freedom Foods Group.聽聽
Editor's note:
This media release was updated on 9 March 2023 with the Originating Process and Concise Statement documents.
Editor's note 2:
On 26 April 2023, ob体育 filed a statement of claim in the matter. Download the . A further case management hearing is listed for 24 May 2023.
Editor's note 3:
A further case management hearing has been listed for 13 December 2023.
Editor's note 4:
On 15 September 2023, a penalty hearing was listed for 15 December 2023 for ob体育's proceedings against Noumi Ltd. The next case management hearing remains 13 December 2023 for the other defendants, Nicholas and Macleod.
Editor's note 5:
The 13 December 2023 case management hearing for Nicholas and Macleod has been vacated and relisted for 28 March 2024. The 15 December 2023 penalty hearing between ob体育 and Noumi Ltd has been vacated and relisted for 18 July 2024.
Editor鈥檚 note 6:
On 26 January 2024, ob体育 filed an in the matter.
Editor鈥檚 note 7:
The 28 March 2024 case management hearing for Nicholas and Macleod has been vacated and relisted for 22 May 2024.
Editor's note 8:
On 13 September 2023, Noumi filed an interlocutory application in the proceedings seeking a declaration that legal professional privilege (LPP) attaches to certain documents and resisted production of those documents to Macleod.
Following the hearing of the application on 14 and 15 February 2024, Sharrif J found that Noumi established LPP over the documents however impliedly waived it when it provided the documents to ob体育 pursuant to a . On 28 May 2024, ob体育 and Noumi both filed separate applications in the Federal Court for leave to appeal the decision and order of Shariff J. The 22 May 2024 case management hearing for Macleod and Nicholas was stood over until the application for leave to appeal has been determined.
Editor's note 9:
On 18 July 2024, the penalty submissions made by ob体育 and Noumi were heard by Justice Jackman in the Federal Court. Judgment was reserved by the Court.
Justice Jackman made orders in relation to a s1317QF application brought by class action lawyers, with a hearing date set for 6 August 2024.
Editor's note 10:
The hearing regarding the s1317QF application brought by class action lawyers has been moved to 9 August 2024.
Editor鈥檚 note 11:
On 5 August 2024, the Federal Court ordered Noumi to pay a pecuniary penalty of $5聽million for contravening its continuous disclosure obligations. See 24-174MR.
Editor鈥檚 note 12:
On 8 August 2024, the hearing of the s1317QF application (see Editor鈥檚 notes 9 and 10) was vacated and the Court made orders by consent.
Editor鈥檚 note 13:
ob体育 and Noumi鈥檚 applications for leave to appeal the decision and order of Justice Shariff J (see Editor鈥檚 note 8) have been listed for hearing on 12 and 13 November 2024.
Editor鈥檚 note 14:
A hearing on final orders and penalties for ob体育's proceedings against Nicholas was heard on 8 October 2024. Justice Jackman reserved his judgment.
Editor鈥檚 note 15:
On 17 October 2024, Justice Jackman found Nicholas to have been knowingly concerned in Noumi鈥檚 continuous disclosure breaches, breached his duties as an officer of Noumi and to have given false or misleading information to Noumi鈥檚 directors and auditors. See (24-227MR).
Editor鈥檚 note 16:
On 20 December 2024, following the hearing of the applications for leave on 12 November 2024 (see editor鈥檚 note 13), the Full Federal Court upheld ob体育鈥檚 appeal in its case against Macleod, finding that providing documents to ob体育 pursuant to a聽Voluntary Disclosure Agreement聽does not necessarily waive any valid legal professional privilege claim. See (25-010MR).
Editor鈥檚 note 17:
Following the determination ob体育鈥檚 appeal, a case management hearing for its ongoing case against Macleod has been listed for 10 March 2025.
Editor's note 18:
ob体育's proceedings against Macleod have been listed for a liability hearing on 9 June 2026 with a pre-trial case management hearing on 25 May 2026.