The granting of rights to inspect investment, audit and insurance documents could help determine the viability of class-action lawsuits over the failure of ASX-listed Blue Sky Alternative Investments.
“This decision is important because it finally gives us access to Blue Sky’s books and records,” said Piper Alderman partner Lachlan Lamont, whose firm initiated the Supreme Court action.
“We can now conduct a forensic analysis of Blue Sky’s accounts and valuation procedures which will help us particularise the shareholders’ claims.”
Piper Alderman, Shine Lawyers and Gadens are among law firms investigating Blue Sky’s accounts to see if any questions arise about disclosures to investors in the former market-darling, which was once valued at more than $1 billion.
“We are still investigating and I am aware of that decision ... which I think is a good decision because ultimately it will probably save everyone time and costs if access to key documents is granted earlier rather than later,” Shine class actions practice leader and former Australian Securities and Investments Commission senior lawyer Craig Allsopp said.
Brisbane-based Blue Sky oversaw funds with assets from a burrito chain to property investments, posting rocketing profits and share prices.
But the wheels fell off after Glaucus Research, short-sellers that make money from share prices falling, dispatched research in March 2018 casting doubt on areas from how Blue Sky was valuing investments to the amount of assets under management.
Blue Sky rejected the claims but tumbled into administration in May 2019.
Justice Graeme Crow, in a decision handed down in Rockhampton last week, said that Mr Furniss had purchased 722 shares in Blue Sky at $13.80 per share, $9963.60 in total, on January 18, 2018. “Some 15 months later his shareholding was worthless,” he wrote.
“[Precedent] cases demonstrate that the pursuit of a reasonable suspicion of a breach of duty is a proper purpose for a substantial shareholder, and in my view, it is also a proper purpose ... for a small shareholder, despite the quantum being much smaller, the rights of the shareholders are the same.”
Justice Crow wrote that there was “substantial support” for the conclusion that there was a case for investigation based on some of Blue Sky’s own market statements after the short-selling critique.
That included Blue Sky stating in April that “it is clear that Blue Sky has fallen short of market and shareholder expectations around transparency and disclosure”.
Another announcement Justice Crow cited was Blue Sky in May saying an “immediate priority is to rebuild trust with stakeholders by making significant changes to the business and management model”.
The court granted access to documents from July 1, 2015, to May 20, 2019, the day Blue Sky was placed into voluntary administration.
“Mr Furniss is not a stranger to Blue Sky, but rather a shareholder who has a right to inspect documents if he can prove, as he has, that he is acting in good faith and for a proper purpose,” Justice Crow wrote.
Mr Furniss has been granted access to look at any indemnity insurance policies that covered Blue Sky or any of its directors and executives between July 1, 2015, and June 30, 2020. The quantum of any insurance policies would outline what a potential class action could go to court to seek damages for.
However, Mr Allsop said shareholders looking to mount an action against Blue Sky and former directors or executives will likely have to wait for a deed of company arrangement, which has been in place since June 2019 and included a moratorium on claims against the company, to be executed or come off. It will also likely require leave from the court to launch a class action.
Former Blue Sky director and head of venture capital Elaine Stead, who was successful in defamation proceedings brought against The Australian Financial Review over two columns in 2019, gave testimony in her action that touched on Blue Sky’s legal requirements about disclosure of information.
Under cross-examination by defence barrister, Sandy Dawson, Dr Stead said an article published by the Financial Review that had previously been published in June 2017 was “incorrect”.
That Financial Review article stated Blue Sky’s $3 billion of assets were evenly split across property, real assets, such as infrastructure, and finally private equity and venture capital.
The court granted access to documents from July 1, 2015, to May 20, 2019, the day Blue Sky was placed into voluntary administration.
“Mr Furniss is not a stranger to Blue Sky, but rather a shareholder who has a right to inspect documents if he can prove, as he has, that he is acting in good faith and for a proper purpose,” Justice Crow wrote.
Mr Furniss has been granted access to look at any indemnity insurance policies that covered Blue Sky or any of its directors and executives between July 1, 2015, and June 30, 2020. The quantum of any insurance policies would outline what a potential class action could go to court to seek damages for.
Former Blue Sky director and head of venture capital Elaine Stead, who was successful in defamation proceedings brought against The Australian Financial Review over two columns in 2019, gave testimony in her action that touched on Blue Sky’s legal requirements about disclosure of information.
Under cross-examination by defence barrister, Sandy Dawson, Dr Stead said an article published by the Financial Review that had previously been published in June 2017 was “incorrect”.
That Financial Review article stated Blue Sky’s $3 billion of assets were evenly split across property, real assets, such as infrastructure, and finally private equity and venture capital.
Full story: AFR
