ASIC has been very explicit about the scale of its ambitions for 2026, reporting that ASIC-led investigations have roughly doubled over the past twelve months and that new court matters have similarly doubled alongside them. ASIC’s 2026 enforcement priorities, spanning private credit, misleading pricing, financial reporting and continued scrutiny of governance and directors’ duty failures, read as a clear signal to company boards across financial services, private credit, insurance and beyond that the regulator intends to keep up this pace.
At the same time, a closer look at what has occurred at the coalface during 2026 tells a second, less publicised story. In three significant proceedings this year, each involving multiple defendants and, in two of the three, a company alongside its directors, ASIC either failed outright or succeeded only against some of the parties it pursued.
The high-profile decisions involving The Star,1 Rex2 and Nuix3 are characterised by ASIC failing to meet its pleaded case. This introduces a useful counterweight to the enforcement-priorities narrative, and a body of reasoning that is worth understanding closely from a corporate governance perspective because the courts in each case drew on the same underlying question: what does the evidence show about the process followed at the time, as opposed to what, with the benefit of hindsight, could have been done differently.
The common thread between The Star, Rex and Nuix
In The Star, ASIC’s proceeding concerned the conduct of all directors, and certain senior executives, of The Star Entertainment Group Limited in relation to alleged money laundering and regulatory risks arising from junket operations and the use of bank cards for gambling purposes.
The Federal Court (Lee J) found that Star’s former CEO and Managing Director, and its former Chief Legal and Risk Officer and Company Secretary, had breached their statutory duty of care and diligence under section 180(1) of the Corporations Act 2001 (Cth), for failing to identify, escalate and properly advise the board on the risks concerned. Critically, the claims against the non-executive directors failed. The Court’s reasoning turned on what the board was actually told, and the degree of scrutiny the board applied to that information, rather than on what, viewed retrospectively, a more searching board might have been able to uncover. This was, by ASIC’s own description, one of the most significant corporate governance cases it has brought, and it draws a considerably sharper distinction than earlier commentary had assumed between the standard expected of management, who must identify and escalate risk, and the standard expected of non-executive directors, who are entitled to rely on the information management puts before them, provided they engage with it critically.
Rex produced an even more finely balanced result. The Supreme Court of New South Wales (Black J) found that Rex itself had breached its continuous disclosure obligations in respect of an overly optimistic profit forecast issued to the market in February 2023, which it failed to update or correct. Rex’s former executive chair admitted the contraventions against him and accepted a pecuniary penalty and disqualification orders should be made against him. Yet ASIC’s claims against three former non-executive directors, including the Hon. John Sharp AM, still failed. ASIC’s case against those directors depended on establishing that they had become aware of financial information which ought to have triggered further disclosure, but failed to act on it. The Court was not persuaded that the evidence supported such a conclusion for each individual director, notwithstanding that the company’s own conduct did not survive the same scrutiny. The result illustrates something that may not always be emphasised enough: corporate liability and individual director liability are legally and evidentially discrete questions, and a finding against the former does not carry the latter along with it.
Nuix was perhaps the most emphatic decision of the three. ASIC alleged that Nuix’s IPO prospectus and subsequent ASX announcements misrepresented FY21 revenue and annualised contract value forecasts, in breach of its continuous disclosure obligations. Five directors were also joined for failing to prevent those contraventions.
Justice Goodman dismissed every element of ASIC’s case. Central to the reasoning was the Court’s treatment of Nuix’s forecasting methodology as a genuine, structured process, tested against the materiality guidance in ASX Guidance Note 8, including its indicative 5 to 10 per cent range for variations from published earnings guidance, rather than assessed with the hindsight benefit of knowing the eventual shortfall. In distinguishing the case from the more plaintiff-favourable reasoning in Southernwood v Brambles Ltd (No 3) [2026] FCA 418, the first successful shareholder class action to proceed to judgment in Australia, the Court in Nuix made clear that a company which can demonstrate a robust and well-documented basis for a forecast at the time it was made is not to be judged, after the fact, by reference to results it could not have known or reasonably have predicted. With no contravention established against Nuix itself, the case against its directors necessarily fell away.4
The role of contemporaneous records
Across the three decisions, contemporaneous records played an important role in allowing the courts to reconstruct what information was available, what processes were followed and what particular individuals knew at the relevant time. Documentation, however, was not itself a defence. Rather, it provided the evidence by which the applicable legal standards could be tested without substituting hindsight for what was known at the time.
This is not a new legal principle. Section 180(1) asks what degree of care and diligence a reasonable person would have exercised in the director’s or officer’s circumstances. The continuous disclosure regime, meanwhile, requires listed entities to disclose market-sensitive information in accordance with the statutory and Listing Rules framework. Where companies make forward-looking statements or forecasts, separate questions arise as to whether there were reasonable grounds for making them. A similar approach is adopted in the context of consumer protection legislation concerning misleading and deceptive conduct.5
For Star’s non-executive directors, the relevant records were the documents and information senior management had put before the board and what the board had asked in response. For Nuix, it was a documented forecasting methodology, tested and revisited as new information emerged, rather than a single forecast that later proved optimistic. For Rex’s non-executive directors, it was evidence capable of separating what the company did, and failed to do, from what each individual director actually knew and when they knew it. In each instance, the party that succeeded was able to point to a reliable paper trail and therefore a credible documentary record. The party that did not, whether that was Star’s former CEO and General Counsel, or Rex itself, generally could not.
Taken together, the decisions reinforce two related points. First, boards must fully engage with material information put before them, and second, that individual liability remains dependent upon what each person knew, their responsibilities and what reasonable care required of them in those circumstances. The first may be somewhat commonsense, but these decisions sharply reinforce the genuine protective value of doing so. The second is precisely the conduct ASIC’s own enforcement priorities identify as a continuing area of focus, and boards should not assume that a run of favourable results in 2026 signals any softening of that intent.
Implications for boards, General Counsel and D&O insurers
For boards and general counsels, the practical implication is to treat these decisions as a live audit prompt rather than simply a piece of reassuring news. Organisations that already maintain rigorous minuting practices, forecast verification records and clear escalation trails have, on the strength of The Star, Rex and Nuix, a considerably stronger evidentiary position than they may have appreciated. Those that do not, should treat 2026 as the year in which the gap between adequate governance and demonstrable governance became a matter of real focus.
For D&O insurers and their advisers, the run of results is also significant. Individual director liability continues to turn on individualised evidence rather than on the fate of the company or co-defendants, which has implications for how coverage positions, defence costs and settlement strategy are assessed across multi-defendant regulatory proceedings. A finding against a company, or against management, should not be treated as necessarily determinative of the position of non-executive directors named in the same proceeding, and insurers should expect increasingly granular, defendant-by-defendant analysis in future matters of this kind.
For ASIC itself, these results are unlikely to alter its overall enforcement appetite, given its clearly stated intention to continue increasing the volume of investigations and court proceedings. However, they may prompt ASIC to sharpen its approach to case selection and pleading, particularly in proceedings against non-executive directors, where ASIC has encountered significant difficulties establishing the knowledge and conduct required to make out its pleaded cases in both Bekier and Rex.
Practical steps to take now
A small number of concrete steps, taken now, are likely to matter considerably if a regulator’s attention ever turns to your organisation.
- Ensure board minutes capture the substance of what was asked and challenged, and by who, in relation to material risks, not merely the fact that a paper was tabled and noted.
- Treat AI-enabled board portal tools as an aid to gathering and organising information, not as a substitute for direct and visible director interrogation of management.
- Maintain a clear record of how any forecast, guidance or public statement was verified, including who was consulted and on what basis, what assumptions were tested, and how those assumptions were revisited as circumstances changed.
- Document the escalation trail from management to the board on any material risk, so that if something does later go wrong, it is possible to demonstrate precisely what the board knew, when it was known, and what it did in response.
- Distinguish, in board and committee papers, between information provided for noting and information that requires active board interrogation or active consideration, and record which category applied in each instance.
None of this is novel advice in isolation. What The Star, Rex and Nuix demonstrate is simply hard evidence of how much this type of documentation matters in front of the court.
Where this leaves boards
ASIC’s appetite for enforcement shows no sign of abatement, and organisations should not read The Star, Rex or Nuix as a sign that scrutiny is easing. What these decisions do show, consistently and across three different courts and three different sets of facts, is that a well-documented governance process remains the most reliable defence available, and that boards able to demonstrate genuine, tested oversight, rather than passive reliance on management, have a much better prospect of distinguishing their position from that of co-defendants in the same proceeding.
We recommend that boards and general counsel use these three decisions as the occasion for a practical review of how board papers, minutes and forecast verification records are currently being kept, with a particular focus on closing any gaps well before, rather than after, a regulator comes knocking.
- Australian Securities and Investments Commission v Bekier [2026] FCA 196 (The Star). ↩︎
- In the matter of Regional Express Holdings Ltd [2026] NSWSC 756 (Rex). ↩︎
- Australian Securities and Investments Commission v Nuix Limited [2026] FCA 490 (Nuix). ↩︎
- ASIC has appealed the dismissal of its claims against Nuix, although it has not appealed the Court’s decision in relation to the directors. The conclusions concerning Nuix’s own liability should therefore be read subject to that appeal. ↩︎
- See, for example, section 4 of the Australian Consumer Law. ↩︎