Control issues: insights from the Takeovers Panel's 2024-25 Annual Report

Ahead of the Deal - Australian M&A Briefing

The Takeovers Panel has published its latest Annual Report covering the 12 months to 30 June 2025. We have distilled the key findings in and insights from the Panel's overview of the applications it has received and decisions it has made.

More applications, fewer declarations

2024-25 was a busy period for the Takeovers Panel, particularly in the second half of the reporting period. In total, 35 applications were received, compared with 25 applications in 2023-24 and 16 applications in 2022-23. This is well above the yearly average of 28.4 applications (based on applications received since 1 July 2000) – indeed, the Panel has not received so many applications since 2019-20.

The below table sets out the outcome of applications over the Panel's past three annual reporting periods. Notably, while there were more applications received in 2024-25, the Panel declined to conduct proceedings with respect to over half of these applications. This is an uptick as compared with 2023-24 (40% of applications not resulting in proceedings being conducted) and 2022-23 (18%). The majority of applications where the Panel declined to conduct proceedings in 2024-25 involved issues regarding association and/or section 606 breaches (as addressed in the next section).

The number of declarations of unacceptable circumstances made by the Panel was down compared with the previous reporting period; four declarations were made in 2024-25, as compared to nine in 2023-24 (noting there were only two declarations in 2022-23).

_{Based on Commonwealth of Australia data. Source: Takeovers Panel Annual Reports 2022-23 (table 3), 2023-24 (table 3) and 2024-25 (table 3)}

Issues considered by the Panel – still no joy for association claims and hard jurisdiction boundaries

Association

As noted in the table below, in 2024-25, over a third of applications concerned issues of association and/or breaches of section 606 (ie a breach of the main takeover prohibition). However, proceedings were only conducted in one of these applications, Mayfield Childcare Limited, and no declaration of unacceptable circumstances was made (with the Panel referring to ASIC questions regarding compliance with section 606). This is consistent with our recent article on the Panel's approach to claims of association, which observed that the threshold for the evidence required to demonstrate an association is high, and that the Panel will only very rarely make a finding of association. The Panel is also contemplating issuing further guidance on association, given the high number of applications and the evidentiary difficulties often encountered – Panel CEO Allan Bulman has indicated to Mergermarket that a consultation paper on this topic is likely to be released in the second quarter of 2026.

The second most common subject matter of applications in 2024-25 was rights issues and placements, which is consistent with recent years.

_{* The Other bar includes insolvency, trust scheme and notice of meeting disclosure (2022-23); item 7 approval, bidder/target conduct and collateral benefits (2023-24); selective buy-back, Chapter 6 avoidance, meeting conduct and collateral benefits (2024-25).}

_{Based on Commonwealth of Australia data. Source: Takeovers Panel Annual Reports 2022-23 (table 5), 2023-24 (table 5) and 2024-25 (table 5). These figures capture the main basis for an application (or if there are two they contribute to half scores) in the view of the Panel executive.}

Jurisdictional issues

Panel President, Alex Cartel, stated in the Annual Report that several applications received during 2024-25 touched on issues at the boundaries of the Panel’s jurisdiction. He specifically noted the following as examples:

• issues relating to share placements (Emu NL, Mayfield Childcare Limited, FBR Ltd);
• proposed de-listings (Vmoto Limited, Pact Group Holdings Ltd 02 & 03) – as addressed in our recent article on the Panel's consideration of de-listing proposals; and
• allegations concerning whether a proprietary limited company had fewer than 50 members (Invest Blue Pty Ltd).

The President observed that there may have been a misunderstanding as to the Panel’s remit in a number of these cases and some were either concurrently before the court or may have been more appropriately ventilated in court. This has resulted in the Panel giving consideration as to whether it should issue further guidance on the scope of its jurisdiction. The President has also encouraged potential applicants to consider seeking legal advice before submitting Panel applications.

A swift outcome – timing for Panel decisions

The Panel continues to resolve matters quickly. Almost half of the applications it received during 2024-25 (17 of the 35) were decided within two weeks, noting three of those applications were withdrawn. The average time to decision by the Panel during 2024-25 was 20.5 days, which is slightly higher than the historical average of 17.9 days.

_{* Includes withdrawn applications (3 in 2024-25; 7 in 2023-24).}

_{** A time extension was obtained from the court for this particular matter.}

_{Based on Commonwealth of Australia data. Source: Takeovers Panel Annual Reports 2022-23 (table 4), 2023-24 (table 4) and 2024-25 (table 4)}

Conduct unbecoming

In 2024-25, the Panel remained focused on the conduct of applicants and parties before the Panel, with the President noting ongoing challenges arising from disruptive behaviour, such as failures to answer questions in briefs.

This has prompted the Panel to consider enhancements to its guidance, particularly in relation to the circumstances under which costs orders may be made against parties who do not engage constructively in proceedings. The Panel also plans to undertake public consultations on proposed changes to its Guidance Note 4: Remedies General to address these issues.

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