The supreme leader has finally admitted wrongdoing
https://www.afr.com/companies/infras...0260520-p5zz0j
Former Rex executive chairman Lim Kim Hai has confessed to a Sydney court that he misled the market and breached his legal duties by promising the embattled airline would make a 2023 profit, when it was in fact on track for a $35 million loss.
In a dramatic reversal, announced in the NSW Supreme Court on Wednesday morning, Lim no longer disputed the corporate watchdog’s allegations against him and accepted he should face a fine and disqualification orders for his conduct. Rex’s one-time executive chairman, Lim Kim Hai, yielded to ASIC on Wednesday.
Louie Douvis Lim, once Rex’s largest shareholder, has also agreed on the terms of his punishment, the Australian Securities and Investments Commission said, but the exact details remain confidential because they are subject to court approval. The available penalties under corporations law include disqualification from running Australian companies and fines of more than $1.3 million per contravention. The regulator spent this week outlining its case against Lim and three of Regional Express’ former non-executive directors over an alleged breach of legal duties for their role in a February 2023 market update, which ASIC has said was misleading. The update said management was “optimistic” Rex would record “positive operating profits” for that financial year, and was not corrected until the end of June 2023, when the airline admitted that a $35 million loss was all but inevitable. Rex collapsed in mid-2024, entering administration under EY until its sale to US aviation company Air T late last year. Lim, along with the three other defendants, originally rejected ASIC’s allegations, denying liability for misleading conduct and breach of legal duties.
But on Wednesday, ASIC barrister Michael Borsky, KC, told the Supreme Court the regulator had reached an agreement with Lim. “There has been a development overnight,” Borsky said. “Mr Lim is no longer contesting liability in this matter. “I expect [Lim’s barrister] will today seek leave to file an amended defence, which will admit each of the contraventions alleged by ASIC.” Now that Lim has admitted liability, he can no longer claim “penalty privilege”, which allows directors to avoid giving evidence when faced with civil penalties under corporations law. That means ASIC may attempt to force Lim to give evidence against his fellow defendants, as Borsky foreshadowed on Wednesday. “I might be instructed [to apply] to adduce further evidence, for example, potentially from Mr Lim himself in ASIC’s case against the remaining defendants … It’s a live possibility.”
Former Rex deputy chairman John Sharp. Alex Ellinghausen Lim’s barrister, Jonathan Kay Hoyle, SC, told the court he was “endeavouring” to produce Lim’s updated defence as soon as possible. “The amended defence will … make relevant admissions,” he said. “[It] will not make any admissions or take any position other than that in respect of the remaining defendants.” The three other defendants are Siddharth Khotkar, Lincoln Pan and Howard government minister and ex-Nationals MP John Sharp, who served as the airline’s deputy chairman at the time of the 2023 market update. ASIC’s case is that although this trio did not know the update was misleading when it was made, they breached their legal duties by taking too long to correct it.
All three continue to deny liability, and in their filed defences claim the privilege against giving evidence. Sharp was instrumental in a mid-2024 boardroom revolt against Lim, eventually replacing him as chairman. “He lives in a world where he is God,” Sharp wrote of Lim at the time, less than a week before the airline collapsed into administration.
The relationship between Sharp and Lim broke down, in part, over who would run Rex’s lucrative subsidiary, National Jet Express, half-owned by Lim and his brother-in-law. When Lim appointed a sales executive to lead the subsidiary, Sharp exploded: “This is pure LKH humbug.”
After finishing with one of ASIC’s remaining witnesses, Justice Ashley Black adjourned proceedings until Thursday to allow ASIC time to consider whether it would call evidence from Lim. “The obvious potential consequence [is] that Mr Lim might now be available to ASIC as a witness,” Black said.