Background on Axsesstoday Limited
Axsesstoday Limited (AXL) was established in 2012 and operated as a lender to small to medium sized enterprises and was listed on the Australian Stock Exchange.
On 26 June 2018, AXL offered to issue $50 million in simple corporate bonds described as “Axsesstoday Bonds – Series A, tranche 1” pursuant to the terms of the Offer Specific Prospectus dated 26 June 2018 (Bonds).
Several months after issue, AXL was found to be in breach of one or more banking covenants. The major cause of those breaches was the implementation of a new Australian Accounting Standard (AASB9) which, amongst other things, altered the requirements for the recognition of arrears, leading to a breach of the relevant arrears ratio. The directors ultimately appointed administrators in April 2019.
A Deed of Company Arrangement was subsequently entered into, under which investors received a payment in the vicinity of 27 cents in the dollar, leaving a significant shortfall on their investment.
Federal Court Proceedings
On 20 August 2020 Hicksons filed a class action in the Federal Court of Australia on behalf of a significant proportion of the bondholders, each of whom have signed a litigation funding agreement with Therium Litigation Finance Atlas AFP IC and a Retainer Agreement with Hicksons. The Representative applicant is Compumod Investments Pty Ltd as trustee of a staff superannuation fund.
The proceedings were commenced against Axsesstoday Limited (AXL) and Pricewaterhouse Coopers Securities Limited (PwCS), seeking recovery of the shortfall on the Bonds and interest payments which were not made. PwCS was the accounting advisor in connection with the prospectus documentation, which is alleged to have contained significant shortcomings.
The applicant alleges, among other things, that AXL made misleading and deceptive statements in, and omitted information that was required to be disclosed in, its prospectus, contravening the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. It is further alleged that in providing accounting advice in relation to the prospectus, PwCS was involved in those contraventions, in addition to itself engaging in misleading or deceptive conduct.
Significantly, the information which ought to have been contained in the prospectus is information concerning the likely potential effect of AASB9 on the financial statements of AXL and its ability to comply with its banking covenants.
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Further information is contained in our FAQ.
If you would like further information regarding the class action and whether you are eligible to register, please contact Premier Litigation Funding Management at [email protected] or email Hicksons at [email protected].
- Frequently asked Questions
- Originating Application filed 20 August 2020
- Statement of Claim filed 20 August 2020
- Amended Statement of Claim filed 21 September 2021
- First Respondent’s Defence to Amended Statement of Claim filed 24 November 2021
- Second Respondent’s Defence to the Amended Statement of Claim filed 24 November 2021
- Second Respondent’s Notice of Cross-Claim filed on 24 November 2021
- Second Respondent’s Statement of Cross-Claim filed on 24 November 2021
- Applicant’s Reply to the First Respondent’s Defence to the Amended Statement of Claim filed 13 December 2021
- First Respondent’s Defence to the Second Respondent's Cross-Claim filed 24 December 2021
- Second Respondent's Reply to the First Respondent's Defence to Cross-Claim filed 18 February 2022
- Further Amended Statement of Claim filed 10 May 2022
- First Respondent's Defence to the Further Amended Statement of Claim filed 23 May 2022
- Second Respondent's Defence to the Further Amended Statement of Claim filed 20 May 2022
- Second Respondent's Amended Statement of Cross-Claim filed 23 May 2022
- First Respondent's Defence to Amended Statement of Cross-Claim filed 3 June 2022
- Second Respondent's Reply to First Respondent's Defence to Amended Cross-Claim filed 10 June 2022
- Further Amended Originating Application filed 17 April 2023
- Second Further Amended Statement of Claim filed 17 April 2023
- First Respondent’s Defence to the Second Further Amended Statement of Claim filed 2 June 2023
- Second Respondent’s Defence to the Second Further Amended Statement of Claim filed 2 June 2023
- Second Respondent’s Further Amended Statement of Cross Claim filed 2 June 2023
- First Respondent's Defence to Further Amended Cross Claim filed 18 July 2023
- Second Respondent's Reply to Defence to Further Amended Statement of Cross-Claim filed 1 August 2023
We recently ascertained that on 29 October 2023, the first respondent was deregistered. It’s solicitors were unaware that had occurred. We note that it has always been the case that the only source of recovery from AXL was by means of insurance proceeds and that the lawyers were in reality acting on behalf of AXL’s insurers. Therefore nothing has changed in relation to the proceedings against AXL other than the fact that the applicant must now formally join the insurers’ agent (Dual Insurance Pty Limited) to the proceedings and seek orders against it directly.
In order to join the insurer to the proceedings, it is necessary to amend the pleading. We have served a copy of the applicant’s proposed Third Further Amended Statement of Claim (3FASOC) on the other parties and are awaiting their response. Various orders were made regarding the joining of the insurer following the filing of the 3FASOC, and any questions arising from the potential amendments to join the insurer will be resolved by 19 February 2023.
We note the proceedings were recently the subject of a mediation, however regrettably no resolution was reached. Due to the confidential nature of mediation we are unable to disclose anything further.
Further, in relation to the substantive proceedings, the applicant has filed and served both its expert evidence and proposed tender bundle, and there is a court-ordered timetable in place which will see the remaining evidence completed by 9 May 2024. The case remains provisionally listed for hearing in June 2024.
The matter is listed for case management on 12 February 2024.