Reasons behind Lance Rosenberg’s Ban Overturn
The Administrative Appeals Tribunal (AAT) have overturned the banning order that was being imposed by ASIC to Mr. Lance Rosenberg (Director of Tricom Equities Limited) from having to provide financial services for 4 years. Though the decision process is still there for review, there are interesting comments which actually were made.
Conduct giving caused to the banning order that’s related with the actions of Rosenberg with regards to the securities which Tricom held by it as a security for loans had an on-lent to Opes Prime. Opes Prime also had administrators that were appointed back in March 27, 2008. Having on-lent securities to Opes Prime as becoming concerned on the ability of Tricom in recovering from securities, Rosenberg actually spent days for them to get good advice from corporate advisers and from insolvency securities with regards to options on how you can recover it.
Before putting in place the special crossing, Rosenberg had a continued communication with the ASX with regards to the position. When he was actually in that special crossing, Rosenberg implemented a negotiation with the lenders and settled the crossing before it was actually due for them in financing the acquisition on securities as well as to cancel the special crossing.
The AAT also considered different expert evidence and the ASX Listing Rules to the case where they relate to the off market transactions like special crossings and the information which is available for investors with regards to such transactions.
The AAT also sees such special crossing as off market transactions to where transactions which is specific on ASX had been transacted off market through a special crossing price and comes with no relation on its market prices for security.
This in fact is where the AAT had came on the conclusion that the evidence be provided by the ASIC didn’t make it out that the relevant sections of Corporations ACT had been contravened. As an addition on the question of evidence about the certain contraventions, the context in making the banning order was later on considered.
The AAT then considered that the banning order should be discretionary and should never be required of being imposed by the ASIC. The main purpose of such banning order is in providing protection to the public as well as to act as a form of deterrent to the person that’s concerned and to other participants as well who are in the market.
The case have to provide comfort to directors that while an ASIC delegate consider the action that’s taken under time pressure in a difficult time is actually in breach with the law. The AAT are considering a broader set of circumstances in different options to a director, which includes the ones available to Mr. Rosenberg in seeking recovery from the securities and that an off market transaction was unlikely to prejudice the investing public.