Diona Pty Ltd, in the matter of Diona Pty Ltd

Diona Pty Ltd, as plaintiff, sought relief from the consequences of non-compliance with a class order issued by the Australian Securities and Investments Commission (ASIC) pursuant to s 341 of the Corporations Act 2001 (Cth). The central dispute involved the failure to comply with certain obligations under a class order, including the timely submission of documents and financial reports to ASIC. The relief sought encompassed exemptions from civil liability for the non-compliance. The court had to determine whether the non-compliance caused substantial injustice to any person and if the weight of justice favoured granting the relief.

The court examined the requirement under s 1322(6)(c) that no substantial injustice has been or is likely to be caused to any person, emphasizing that the court is concerned with real and material prejudice. The court considered the proactive measures taken by the plaintiffs and their officers to remedy the non-compliance, along with the absence of a position from ASIC. The court held that the weight of justice overwhelmingly favoured granting the relief, as the non-compliance did not result in any substantial injustice and the plaintiffs were proactive in addressing the issues.

Accordingly, the court granted the application for relief from the consequences of non-compliance. The court made several orders, including extending the time for lodging certain documents with ASIC, abridgement of the time for passing specific resolutions, and relief from civil liability for the non-compliance. The court emphasized the remedial nature of s 1322 of the Act, which should be construed broadly and applied pragmatically.

The final orders included granting leave to amend the originating process, extending deadlines for lodging documents with ASIC, relieving the plaintiffs from civil liability for non-compliance with specific provisions of the class order and the ASIC instrument, and extending the time for passing certain resolutions. These orders were made to ensure that the relief provided aligned with the substantive requirements of the Act.