Australian Dairy Farms Limited, in the matter of Australian Dairy Farms Limited and Dairy Funds Management Limited

The case involved Australian Dairy Farms Limited and Dairy Funds Management Limited, who sought relief under section 1322(4) of the Corporations Act 2001 (Cth). The plaintiffs applied for an extension of time for giving notice to the Australian Securities Exchange (ASX) and a declaration that their offer to issue stapled securities did not contravene certain disclosure requirements. The application arose from the issuance of stapled securities that included units in the Australian Dairy Farms Trust, which appeared to contravene disclosure requirements under an Australian Securities and Investment Commission (ASIC) Class Order.

The primary legal issues the court had to address were whether the court had the discretion to extend the time for giving notice to ASX and to declare the offer of stapled securities valid despite the apparent contravention of disclosure requirements. The court also needed to determine whether the principles applicable to remedial orders in cases of suspected contraventions of Part 7.9 of the Corporations Act were analogous to those used in cases concerning Chapter 6D.

The court found that the securities in question were subject to the financial products provisions of Part 7.9 of the Corporations Act. Although previous cases concerning remedial relief for failures to meet disclosure requirements had involved Chapter 6D, the court was satisfied that a similar approach was warranted for Part 7.9. Consequently, the court granted the relief sought by the plaintiffs, extending the time for notice to ASX and declaring the offer of stapled securities valid despite the apparent contravention of disclosure requirements. The court noted that there was no need to provide an opportunity for security holders to apply to set aside or vary the orders, given the timing of the application and the fact that the stapled securities had not yet been issued. The court made no order as to costs, distinguishing the case from instances where blame could be attributed to a particular party.

The court's orders included extending the time for giving notice to ASX until 12 October 2018, declaring the offer of stapled securities valid, and requiring the plaintiffs to publish an announcement of these orders on the ASX Markets Platform. The orders also requested ASIC to include a copy of the orders on its database. No costs were awarded.