2025 in review: A few M&A things you might have missed

The power of gold

Geopolitical tension, economic uncertainty, and inflationary challenges were some of the factors that pushed the precious metal to a record high of over US$4,000 an ounce. As well as leading to long lines for bullion at various mints, the record prices drove an unprecedented year of M&A for gold miners and explorers seeking consolidation and growth opportunities. Several major transactions defined this consolidation trend: Northern Star’s acquisition of De Grey Mining ($5.0 billion); Gold Fields acquisition of Gold Road Resources ($3.7 billion); Ramelius Resources’ bid for Spartan Resources ($2.4 billion); and Capricorn Metals acquisition of Albion Resources’ Mongers Lake Project. By our count, gold M&A accounted for roughly a quarter of all public deals over the calendar year by value.

A busy corporate regulator

Some ASIC staff would be excused for putting their feet up after what has been a very busy year. ASIC launched its largest number of civil prosecutions this year, including high profile proceedings against Star Entertainment and ASX, following through on its long list of enforcement priorities for this year. As announced in November 2024, these included a focus on governance and directors’ duties failures as well as misconduct damaging market integrity, including insider trading, continuous disclosure breaches and market manipulation. Last month ASIC commenced Federal Court proceedings against AVZ Minerals and two directors for alleged breaches of continuous disclosure and misleading conduct for failing to disclose an escalating legal dispute in the Democratic Republic of the Congo regarding AVZ’s flagship Manono Project. This follows ASIC’s December 2024 claim against Rex Airlines and four directors for statements regarding profitability. These matters signal ASIC’s readiness to hold both companies and directors publicly accountable for market disclosures, reinforcing the critical importance of accurate and timely reporting for listed entities.

Growth of private capital markets

Australian private markets continued to outpace the public sphere in 2025. Superannuation funds, sitting on record inflows, have increased allocations to private equity, venture capital and, most notably, private credit. This trend reflects a search for higher returns and diversification amid subdued public market performance and regulatory complexity.

As private markets are generally less regulated, this has drawn the regulator’s attention, and ASIC has undertaken a significant consultation process over the year seeking to explore the shifting dynamics between public and private markets. ASIC released its findings last month (accessible here), which are a must read (although you’ll need to allow a little more time for that). ASIC’s roadmap for the next 12-18 months (page 10) sets out key areas of focus, including additional surveillance and enforcement in private markets, and engagement with government on policy and potential legislative reform.

While the shift to private markets offers opportunities for long-term capital formation, some recent, high-profile, corporate collapses and bankruptcies which will leave unsecured private creditors exposed will raise further questions about valuation practices and investor protection in private markets. While there’s already been a shift in sentiment from investors, expect more to come on this in 2026 as we see how cockroachgate plays out.

IPO market remains soft

As the private market has grown, the public market continues to decline, with de-listings outpacing new listings. This is a similar story globally – with the exception of Hong Kong. Without wanting to seem too dim on the future of public markets, we don’t know what will solve this issue. Among other things, private capital is less regulated and does not have the governance obligations that exist in the public markets. The inherent value of being a listed entity also appears to have lessened. To reboot primary issuance while safeguarding investors, in June ASIC launched its “streamlined IPO” pilot, which permits eligible issuers (minimum $100 million market cap; no escrow requirements) to submit prospectus drafts for informal pre-lodgement review, retail investor participation during the exposure period, and a shorter overall IPO timeline to reduce market volatility risks. Notwithstanding this, only 31 companies had listed on the ASX by mid-November, many of those resource exploration companies buoyed by strong commodity prices. While regulatory simplification is helpful, it seems an investor led shift will be needed. Perhaps there will be some consolidation amongst public exchanges to provide companies with greater incentives to seek public listings – for example, the Canadian Securities Exchange acquired the Australian National Stock Exchange by scheme of arrangement in November this year.¹

Careful with your MAC

No material adverse change (‘MAC’) clauses are being accepted more regularly by sellers – essentially provisions that permit a buyer to walk where there has been a material change to the target business. These clauses require meticulous consideration – see our earlier article here for some specific considerations. Whilst MACs were relied on to terminate several deals during COVID (for example – EG FuelCo and Oliver’s Real Food, and Scottish Pacific and CML Group), this was a relative anomaly, with deals rarely terminated because of a MAC – buyers typically use them as leverage to renegotiate price. Formal disputes over MAC clauses in Australia are even less common, with only a handful of notable cases, highlighting that while MAC clauses offer theoretical protection, their practical enforcement remains exceptional.

This year saw a couple of MAC provisions tested. Peabody Energy sought to abandon its proposed ~$5 billion acquisition of Anglo American’s Australian steelmaking coal portfolio after an ignition event at one of the mines – Anglo has since launched arbitration proceedings. Cosette Pharmaceuticals also sought to terminate its acquisition of Mayne Pharma because of declining trading performance and a regulatory breach notice from the US FDA. The Supreme Court of NSW upheld Mayne Pharma’s application that the termination was invalid, emphasising the public importance of schemes of arrangement, and noting that Cosette’s decision to amend and affirm the implementation deed with knowledge of relevant matters was inconsistent with later seeking termination, and amounted to an election not to terminate. The termination notice was dismissed, leaving Cosette obliged to complete the acquisition subject to remaining approvals. ²

Birthday celebrations for the Takeovers Panel

It has been 25 years since the Takeovers Panel was established under the CLERP reforms in 1999, principally to resolve takeover disputes in a cost effective and timely manner outside the courts. Since that time, the Panel has evolved significantly, becoming the primary forum for disputes in relation to control of Australian public companies. This growth in the Panel’s mandate and a significant body of decisions established over a quarter of a century help guide market participants towards acceptable conduct in the contest for corporate control.

According to its annual report for the financial year ending 30 June 2025, the Panel experienced a surge in activity, receiving 35 applications, up from 25 in 2023–24 and 16 in 2022–23. More than one-third of applications related to association issues. Mayfield Childcare Limited was the only matter that proceeded to a hearing, although no orders were made. This further underscores the number of association matters coming before the Panel and the high evidentiary threshold required to establish undisclosed associations. The Panel appears set to consult on association issues before the Panel in the second quarter of 2026 – providing an opportunity for market participants to provide their views.

Reflecting how broad the market now views the Panel’s remit, several applications tested the boundaries of the Panel’s jurisdiction, including matters involving share placements (e.g. Emu NL, Mayfield Childcare, FBR Ltd), proposed delistings (e.g. Vmoto, Pact Group), and shareholder thresholds in proprietary companies (e.g. Invest Blue). In response to a growing number of out-of-scope or disruptive applications, the Panel’s President, Alex Cartel, has warned that frivolous or tactical applications may now attract adverse cost orders.

Disclosing non-binding approaches

A lot of ink was spent on one of this years’ potential mega-deals, the ~$30 billion offer for Santos, Australia's second-largest gas producer. Santos announced receipt of the proposal, notwithstanding it was non-binding and indicative, remained subject to due diligence and as noted in the announcement, provided no guarantee that the transaction would proceed. Whilst the authors acknowledge we don’t have all the detail regarding the approach, the listing rules do not require disclosure of information that concerns an incomplete proposal and which remains confidential. Contrast AUB Group’s announcement regarding receipt of a non-binding indicative proposal which was made following media speculation (suggesting confidentiality had been lost). Santos’ shares climbed ~11 per cent following the announcement and retreated about the same amount once the collapse of negotiations was announced in September. The directors may have felt the market was entitled to the information and to be put in a position to make its own decision on the likelihood of the transaction proceeding and therefore the value to ascribe to it, but it’s a good reminder for target boards and their advisers to have a response plan in place if they consider they may be a takeover target, which importantly includes consideration regarding disclosure.

Foreign investors beware

In 2025, the Foreign Investment Review Board (FIRB) demonstrated an increased focus on national interest considerations, particularly for investments in critical minerals, sensitive technologies, and infrastructure, following the reforms announced in 2024 which adopted a risk based approach. This heightened scrutiny led to extended review periods for complex applications, reflecting a more cautious approach to foreign capital deployment. Geopolitical factors also played a more prominent role, influencing approval processes and leading to specific conditions aimed at safeguarding national security and economic interests. In a significant step in ensuring compliance with Australia’s foreign investment laws, the Treasurer commenced proceedings in the Federal Court against a foreign investor who failed to comply with FIRB’s divestment orders. This matter highlights the importance of foreign investors complying with applicable Australian laws.

FIRB also showed a growing preference for investments that offered tangible benefits to the Australian economy, such as job creation, technology transfer, and local supply chain development. Investors in sectors deemed critical, such as defence, energy, and data, faced more rigorous assessment, often requiring enhanced consultation with various government agencies.

Gearing up for Australia’s mandatory merger control regime

2025 has been a significant year on the merger control front, with Australia preparing for the introduction of a new mandatory merger control regime from 1 January 2026. Voluntary notifications under the new regime commenced during a transitional period from 1 July this year, and we have seen our first acquisitions notified to the Australian Competition and Consumer Commission (ACCC) and several reviews completed in the last six months. A number of these related to acquisitions of leases and were approved during the first phase of review, while a number are ongoing. From 1 January 2026, transactions must be notified to the ACCC and completion suspended pending the ACCC’s review, if certain thresholds are met.

While the new regime will bring Australia into line with other major jurisdictions internationally, we are expecting there to be a range of complexities to navigate in the new year, including: automatic voiding of transactions that meet a threshold but have not been notified to the ACCC; assessments of control; from 1 April 2026, acquisitions of shares crossing various 20 per cent and 50 per cent shareholding thresholds whether or not there’s a change in control; and whether contracts and acquisitions of certain interests in land including leases will be notifiable. Filing fees will be substantial. There is still some flux in the new regime, including potential refinements to merger notification instruments expected before the end of the year. You can keep abreast of emerging changes to the new regime via our website.

Close

We could say more, but you’ve got crayfish to catch or a turkey to prepare. Clearly 2025 has been a pivotal year for Australia’s M&A and equity capital markets, marked by commodity-driven consolidation, increased regulatory review, and evolving investor dynamics.

Enjoy your break, and we will see you next year!