Section 728 — Corporations Act 2001 (Cth)

Misleading or deceptive statements, omissions and new matters

(1) A person must not offer securities under a disclosure document if there is:

(a) a misleading or deceptive statement in:

(i) the disclosure document; or

(ii) any application form that accompanies the disclosure document; or

(iii) any document that contains the offer if the offer is not in the disclosure document or the application form; or

(b) an omission from the disclosure document of material required by section 710, 711, 712, 713, 713C, 713D, 713E, 714 or 715; or

(c) a new circumstance that:

(i) has arisen since the disclosure document was lodged; and

(ii) would have been required by section 710, 711, 712, 713, 713C, 713D, 713E, 714 or 715 to be included in the disclosure document if it had arisen before the disclosure document was lodged.

Note 1: The person may make further offers after making up the deficiency in the current disclosure document by lodging a supplementary or replacement document.

Note 2: See sections 731, 732 and 733 for defences.

Note 3: Section 1041H imposes liabilities in respect of other conduct related to the offering of the securities.

Forecasts and other forward‑looking statements

(2) A person is taken to make a misleading statement about a future matter (including the doing of, or refusing to do, an act) if they do not have reasonable grounds for making the statement. This subsection does not limit the meaning of a reference to a misleading statement or a statement that is misleading in a material particular.

Offence if statement, omission or new matter materially adverse

(3) A person commits an offence if they contravene subsection (1) and:

(a) the misleading or deceptive statement; or

(b) the omission or new circumstance;

is materially adverse from the point of view of an investor.

Civil liability if statement, omission or new matter materially adverse

(4) A person contravenes this subsection if:

(a) the person contravenes subsection (1); and

(b) either:

(i) the misleading or deceptive statement; or

(ii) the omission or new circumstance;

is materially adverse from the point of view of an investor.

Note: This subsection is a civil penalty provision (see section 1317E).

Related sections

• s 725A — Part generally does not apply in relation to CSF offers
• s 726 — Offering securities in a body that does not exist
• s 727 — Offering securities without a current disclosure document
• s 729 — Right to recover for loss or damage resulting from contravention
• s 730 — People liable on disclosure document to inform person making the offer about deficiencies in the disclosure document
• s 731 — Due diligence defence for prospectuses

Research how courts apply s 728

BriefBridge searches Australian caselaw by meaning — every answer cited to the paragraph.