The former CFO of Benjamin Hornigold Limited, Mr Samuel Elderfield, appeared in the Brisbane Magistrates Court charged with a criminal offence.
Mr Stuart McAuliffe, the former CEO of Benjamin Hornigold Limited, has also been charged with criminal offences but did not appear in court when his name was called.
ASIC alleges that Mr McAuliffe and Mr Elderfield failed to act in the best interests of Benjamin Hornigold regarding payments made between 26 June 2018 and 29 June 2018, totalling $3.8 million, to John Bridgeman Limited, a related entity and investment manager for Benjamin Hornigold. Failing to act in the best interests of a corporation is an offence under s 184(1) of the Corporations Act.
ASIC also alleges that Mr McAuliffe caused misleading information to be provided to the Australian Securities Exchange in August 2018 about the payments. ASIC alleges that conduct was in contravention of s 1309 of the Corporations Act.
The matter is being prosecuted by the Commonwealth Director of Public Prosecutions after an investigation by ASIC. Mr Elderfield's prosecution has been listed for further mention in the Magistrates Court at Brisbane on 16 June 2023.
The court ordered that Mr McAuliffe appear before the Magistrates Court at Brisbane on 17 March 2023 for a further mention of his prosecution.
Background
Benjamin Hornigold, John Bridgeman and Henry Morgan Limited (in liquidation) were part of a funds management group of companies.
Benjamin Hornigold and Henry Morgan were listed on the ASX as listed investment companies for which John Bridgeman was the investment manager.
Henry Morgan was suspended from trading on the ASX in June 2017, removed from the official list in February 2020 and wound up on 22 August 2022.
Benjamin Hornigold was suspended from trading on the ASX in July 2018. In June 2019, the board of Benjamin Hornigold resigned, including Mr McAuliffe, and a new board was appointed, with trading in the company's shares of Benjamin Hornigold resuming on 25 June 2020.
At the time of the alleged offending, the maximum penalty for dishonest breaches of directors' and officers' duties, and for knowingly providing or permitting the provision of misleading information to the operator of a financial market, was five years' imprisonment.
