In a statement on Friday, ASIC confirmed that Samuel Elderfield, the former CFO of Benjamin Hornigold, appeared in the Brisbane Magistrates Court charged with a criminal offence, while the former CEO, Mr Stuart McAuliffe, was also charged with criminal offences but did not appear in court when his name was called.
ASIC alleged 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, a related entity and investment manager for Benjamin Hornigold. The regulator noted that "failing to act in the best interests of a corporation is an offence under s 184(1) of the Corporations Act".
ASIC also alleged that Mr McAuliffe caused misleading information to be provided to the Australian Securities Exchange in August 2018 about the payments, which, according to the regulator, 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.
Benjamin Hornigold, John Bridgeman and Henry Morgan Limited were companies within a funds management group. Benjamin Hornigold and Henry Morgan were listed on the ASX as investment companies, with John Bridgeman serving as their investment manager. However, Henry Morgan was suspended from trading on the ASX in June 2017 and was officially delisted in February 2020.
Benjamin Hornigold was suspended from trading in July 2018, and a new board was appointed in June 2019 after the previous board, including former CEO Mr McAuliffe, resigned. Trading in Benjamin Hornigold's shares resumed in June 2020.
At the time of the alleged offending, the maximum penalty for breaches of directors' and officers' duties and knowingly providing misleading information to the operator of a financial market was five years' imprisonment.
