Global Lithium Resources Limited v Sincerity Development Pty Ltd [No 2] - [2024] WASC 443

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GLOBAL LITHIUM RESOURCES LIMITED -v- SINCERITY DEVELOPMENT PTY LTD [No 2] [2024] WASC 443
CORAM:   HILL J
HEARD:   18 NOVEMBER 2024
DELIVERED          :   19 NOVEMBER 2024
PUBLISHED           :   26 NOVEMBER 2024
FILE NO/S:   COR 139 of 2024
BETWEEN:   GLOBAL LITHIUM RESOURCES LIMITED
Plaintiff
AND
SINCERITY DEVELOPMENT PTY LTD
Defendant

Catchwords:

Corporations - Meetings - Application for extension of time to hold extraordinary general meeting and annual general meeting - Where majority of plaintiff's directors hold concerns about potential breaches of Foreign Acquisitions and Takeovers Act 1975 (Cth) (FIRB Act) by a group of shareholders - Where plaintiff made complaint to Department of Treasury about possible breach of FIRB Act - Where ongoing communication between plaintiff and Department of Treasury - Relevant factors in considering application for extension of time - Whether substantial injustice caused by extension of time

Legislation:

Corporations Act 2001 (Cth) s 249D, s 249J, s 250N, s 250P, s 250R, s 317, s 459G, s 1322
Foreign Acquisitions and Takeovers Act 1975 (Cth)

Result:

Extension of time granted

Category: B

Representation:

Counsel:

Plaintiff	:	A J Papamatheos SC & C E McKay
Defendant	:	S Penglis SC & T Houweling

Solicitors:

Plaintiff	:	Thomson Geer
Defendant	:	Cornerstone Legal

Cases referred to in decision:

An v Joo [2019] NSWSC 39
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACLC 787
National Roads & Motorists' Association Ltd v Parkin [2004] NSWSC 296
PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd [2017] FCA 848
Re Compaction Systems Pty Ltd [1976] NSWLR 477, 493; (1976) 2 ACLR 135
Re Gem Exploration and Minerals NL [1975] 2 NSWLR 584
Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174
Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390
Re Northern Minerals Ltd [2023] NSWSC 1568
Super John Pty Ltd v Futuris Rural Pty Ltd [1999] NSWSC 627 [14]; (1999) 32 ACSR 398
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings, and to correct matters of grammar and expression.)

By an interlocutory process filed 8 November 2024, the plaintiff (the Company) seeks orders pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act) to extend the time fixed under the Act for calling and holding an extraordinary general meeting (EGM) as well as its annual general meeting (AGM). The extension of time is sought until 20 March 2025. At present, these meetings are scheduled to take place tomorrow, Wednesday, 20 November 2024, at 4.00 pm.
In support of the application, the plaintiff relied on nine affidavits being:
(a)three open affidavits of Ronald Mitchell, a director of the plaintiff, which were filed on 11 and 18 September 2024, and 8 November 2024;
(b)a confidential affidavit of Mr Mitchell filed 8 November 2024;
(c)three affidavits of Sophie Durrant, a solicitor employed by the plaintiff's solicitors, filed 11, 14 and 15 November 2024;
(d)an affidavit of Yannik Simkovics, a solicitor employed by Peloton Legal Pty Ltd (Peloton Legal), the plaintiff's commercial solicitors, filed 12 November 2024; and
(e)an affidavit of Caroline Spencer filed 18 November 2024.
The application is opposed by the defendant who says that none of the matters advanced by the plaintiff are sufficient for the court to exercise its discretion to grant any extension of time to convene and hold its AGM. In the event the court is minded to grant an extension, the defendant says it should not be for the four months sought by the plaintiff, but (at best) until the first week of February 2025. The defendant filed two affidavits of Bronwyn Waugh on 14 November 2024 in support of its contended position.
In determining this application, I have also had the benefit of written submissions from the Australian Securities and Investments Commission (ASIC), which were provided at the request of the court.

Factual background

The plaintiff is a public company whose shares are listed on the Australian Securities Exchange (ASX). It is a lithium exploration company with two projects in Western Australia. As at September 2024, when the originating process was filed, the plaintiff had more than 260 million shares on issue, more than 6,500 shareholders, and a market capitalisation of almost $50 million.[1]
[1] Affidavit of Ronald William David Mitchell filed 11 September 2024 [8], [14] - [15].
At present, the plaintiff has five directors: Dr Chen (an executive director); Mr Mitchell (the executive chairman), Ms Lawrance, Mr Lilleyman, and Mr Allen. Mr Allen, who is the chief financial officer of the plaintiff, was appointed as a director of the Company on 9 September 2024 to fill a casual vacancy caused by the resignation of the previous non-executive chairman.[2] Pursuant to s 201H(3) of the Act, Mr Allen will hold office until the conclusion of the plaintiff's next AGM, and will cease to be a director at that time unless re-elected.
[2] Affidavit of Ronald William David Mitchell filed 11 September 2024 [9].
The defendant is, and has been since July 2022, a shareholder of the plaintiff since it was first listed on the ASX. At present, it holds approximately 6.93% of the shares on issue. The director of the defendant is Mr Zhu.[3]
[3] Affidavit of Ronald William David Mitchell filed 11 September 2024 [16.3], [17].
On 21 August 2024, the defendant served a s 249D notice on the plaintiff requesting that the Company call and hold a meeting of the Company to consider the following resolutions:[4]
(a)the removal of Ms Lawrance and Mr Lilleyman as directors;
(b)the appointment of Mr Zhu as a director; and
(c)the maximum number of directors of the Company be fixed at three.
[4] Affidavit of Ronald William David Mitchell filed 11 September 2024, 'RM-13'.
On 10 September 2024, the Company announced that Ms Lawrance and Mr Lilleyman had advised the plaintiff of their intention not to seek re-election at the Company's AGM. At that time, the Company also announced that it intended to reduce the number of directors of the Company from four to three at the AGM for at least the duration of the current lithium downturn.[5]
[5] Affidavit of Ronald William David Mitchell filed 11 September 2024, 'RM-16'.
On 11 September 2024, the plaintiff filed the originating process in these proceedings seeking orders to extend the time for the calling and convening of the EGM so that the meeting would be held at the same time as the 2024 AGM, which was then scheduled to take place on 28 November 2024.
The originating process was programmed through to a final hearing. Shortly prior to that hearing, the parties agreed orders to extend the time for the calling and holding of the EGM until the AGM, which was agreed to be brought forward to 20 November 2024. These orders were made on the undertaking of each of Ms Lawrance and Mr Lilleyman to retire at the 2024 AGM and not to seek re-election at that meeting.
The affidavits of Mr Mitchell that were filed in support of the originating process referred to the plaintiff's concerns regarding a potential association between Mr Zhu and others, including Dr Chen. At that stage, Mr Mitchell's evidence was that the plaintiff did not have sufficient information to determine whether this was an issue. He indicated that the issue was to be investigated further, and that necessary steps would be taken before the AGM was held in order to deal with these issues.[6]
[6] Affidavit of Ronald William David Mitchell filed 11 September 2024 [48].
Since the making of orders by the court on 18 September 2024, the plaintiff has complied with the financial reporting obligations that are imposed by the Act and the ASX Listing Rules. These include by lodging its financial accounts for the year ended 30 June 2024, as well as its quarterly activities and appendix 5B quarterly cash flow report for the period ending 30 September 2024. The plaintiff has also published and sent to shareholders its annual report.[7]
[7] Affidavit of Ronald William David Mitchell filed 8 November 2024 [9] - [10], 'RM-32', 'RM-33'.
On 18 October 2024, the plaintiff dispatched its notice of the AGM to its shareholders.[8] This was dispatched prior to the closing date for the receipt of any additional nominations for directors. On 20 October 2024, the plaintiff received an additional nomination for appointment as a director, being the nomination of Dr Sun. On 22 October 2024, an announcement was made of the receipt of this nomination and an addendum to the notice of AGM was issued.[9]
[8] Affidavit of Ronald William David Mitchell filed 8 November 2024, 'RM-34'.
[9] Affidavit of Ronald William David Mitchell filed 8 November 2024 [14] - [15], 'RM-36', 'RM-37'.
Shortly prior to the dispatch of the notice of meeting, on 14 October 2024, Peloton Legal, the commercial solicitors for the plaintiff, sent a letter to the Department of Treasury (Treasury) on behalf of the directors of the plaintiff (apart from Dr Chen) raising concerns as to whether there have been potential breaches of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FIRB Act) by certain shareholders.[10] Since lodging this complaint, representatives of the plaintiff have had a video call with representatives of Treasury, and correspondence has been exchanged between Treasury and the plaintiff's commercial solicitors. Neither the court nor the defendant's counsel or solicitors have been provided with copies of this correspondence consistent with the plaintiff's obligations under the FIRB Act, although a copy of the complaint is annexed to Mr Mitchell's confidential affidavit and has been provided to both the court as well as counsel and a named solicitor of the defendant.
[10] Confidential affidavit of Ronald William David Mitchell filed 8 November 2024 [9], 'RM-40'.
On 8 November 2024, the plaintiff filed an interlocutory process seeking to extend the time to hold its AGM and the EGM until 20 March 2024, a period of four months. The evidence before the court is that two of the largest shareholders of the plaintiff support the application for a deferral.[11] I infer from the proxy report that is attached to Mr Mitchell's confidential affidavit that this may not be the universal position of the Company's shareholders.
[11] Affidavit of Sophie Ellen Durrant filed 15 November 2024, 'SED-10'; Affidavit of Caroline Cecilie Spencer filed 18 November 2024, 'CS-5'.

Statutory framework

Div 8 of Pt 2G.2 of the Act sets out the statutory requirements for AGMs of public companies.
Relevantly, s 250N of the Act provides that:
(2)A public company must hold an AGM at least once in each calendar year and within 5 months after the end of its financial year.
(2A)An offence based on subsection (1) or (2) is an offence of strict liability.
(3)An AGM is to be held in addition to any other meetings held by a public company in the year.
Where a company seeks to extend the time to hold its AGM, it is possible for a company to lodge an application with ASIC for an extension of time under s 250P of the Act. ASIC has released ASIC Regulatory Guide No 44 which sets out the matters it takes into consideration in granting any extension.
There are a number of rights that shareholders have in relation to the holding of an AGM. These include the entitlement to submit written questions to the company's auditor (who is required to attend the AGM) at least five days prior to it being held, and also the necessity for the chair of the meeting to allow members to have a reasonable opportunity to ask questions or make comments on the management of the company.
Section 250R of the Act sets out the business which may be conducted at the AGM, which includes consideration of the annual financial report, the directors' report, and the auditor's report, as well as the election of directors. Companies are required, pursuant to s 317 of the Act, to lay before the AGM, the financial report, the directors' report, and the auditor's report for the previous financial year.
In considering an application under s 1322 of the Act, the essential principles are well known and can be summarised as follows.[12]
(a)The prescriptive requirements of the wording in s 1322(4) and the preconditions in s 1322(6) of the Act need to be satisfied.[13]
(b)The court retains a discretion under s 1322(4) of the Act as to whether or not it will make the orders sought.[14]
(c)Limitations to the broad powers in s 1322 of the Act will not be readily implied. The section is remedial in character and should be applied broadly.[15]
[12] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174 [20].
[13] Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 [43], [53], [64].
[14] Weinstock v Beck [43], [55] - [56], [60], [64].
[15] Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390.
In relation to the test that is applied by the court under s 1322(4)(d), it is a two-stage process.
First, the court needs to determine whether, having regard to the circumstances of the case and the general objects of the Act, it is appropriate to make an order extending the relevant period.
Second, if those circumstances are made out, the court must then address the question as to whether any substantial prejudice has been or is likely to be caused to any person by the making of such an order.
In exercising the power under s 1322(4)(d) of the Act, regard must be had to the general objects and purposes of the relevant statutory provision. The court's order must not undermine the reasons for the requirements of the Act and must be exercised having regard to the interests of all parties affected, as well as the public interest in ensuring that there is compliance with the Act.

Proper construction of s 250N of the Act

The first issue that arose on the interlocutory application before me was whether the court has the power to grant an extension beyond the end of a calendar year. While senior counsel for the defendant accepted it was open to the court to grant an extension of time for the holding of the plaintiff's AGM, it was contended that, on a proper construction of s 250N of the Act, it was not possible for the court to extend the date of the AGM beyond the end of the calendar year. The basis for this submission was that the more general provision contained in s 1322 of the Act could not be used to 'relax' or 'undermine' the specific provision contained in s 250N of the Act.
In support of this submission, the defendant relied on the decision of McKerracher J in PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd.[16] That decision concerned s 459G of the Act and referred to and relied on the High Court's decision in David Grant & Co Pty Ltd v Westpac Banking Corporation. In that case, Gummow J held that:[17]
[Paragraph] (d) [of s 1322] confers upon the court a broad authority to extend the period for the taking of any step under the Law or any step in relation to a corporation. As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision. Here, however, by a later and more specific provision inserted in the Law by the 1992 Act, provision is made with respect to a particular class of application and there is attached a specific limitation as to the time within which an application may be made. The imposition of such a restriction is consistent with the scheme of the 1992 Act.
[16] PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd [2017] FCA 848.
[17] David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 275 - 276.
Two things can be noted from this decision. First, the decision concerns the conferral of jurisdiction on the court and not the imposition of an obligation on a company to comply with the Act. Second, the specific conferral of jurisdiction in s 459G is the requirement for an application to be filed and served within 21 days. It is this specific conferral of jurisdiction that cannot be extended by the general power in s 1322.
This can be contrasted with the obligations contained in s 250N of the Act. This section imposes two obligations on a public company. First, that an AGM must be held at least once in each calendar year. Second, that the AGM must be held within five months after the end of its financial year.
In my view, nothing in the text of s 250N confers any jurisdiction on the court or places any specific limitations on its jurisdiction. Instead, it imposes two obligations on a public company. In my view, consistent with Gummow J's reasons in David Grant & Co Pty Ltd, s 1322(4)(d) of the Act confers broad authority on the court to extend the period for taking both of the steps set out in that section. This construction is consistent with the context in which this section applies, which includes s 250P of the Act enabling ASIC to extend the period within which an AGM is required to be held without imposing any temporal limit on how long the extension can be for. It is also consistent with the purpose of the section which is to ensure there is a regular occasion on which a company's management is required to report to its shareholders, answer questions and face election or re‑election.
On this basis, I do not accept that any orders for an extension of time to hold the AGM can only be made to a date within the same calendar year. In my view, orders can be made under s 1322(4)(d) of the Act to extend both of the time periods in s 250N. That said, it is, of course, relevant to the exercise of any discretion as to whether or not to grant the extension sought that the legislature has imposed requirements on a public company as to when its AGM must be held. In considering any application, it is necessary for the court to take account of the legislative purpose and where and whether, in the circumstances of the particular case, it is appropriate to grant the extension sought.

Is it appropriate to make an order extending the time for the plaintiff to hold its AGM and EGM?

Subject to the jurisdictional question that I have just dealt with, the defendant's submissions focussed on whether the court should exercise its discretion to extend the time period, and if so, whether the time period sought by the plaintiff was excessive. That is, the question on the interlocutory application was how the principles that govern the application should be applied to the particular facts of this case.
Before turning to these relevant facts, it is useful to first set out the purpose of s 249D and s 250N of the Act.
The purpose of s 249D is to give a substantial shareholder (or a group of shareholders who are collectively entitled to more than 5% of the shares in a company) the right to have resolutions put to and considered by a meeting of shareholders. This right extends to the right to seek to remove directors under s 203D of the Act and to appoint directors, and exists so that something akin to a democratic process can occur in the governance of public companies.
The right that is granted by s 249D of the Act, however, does not extend to the right to have the resolutions considered within a particular period of time, given the ability to obtain an extension of time under s 1322 of the Act. As Campbell J stated in National Roads & Motorists' Association Ltd v Parkin:[18]
[I]t would be a frustration of Parliament's intention in creating the right for requisitionists to call a meeting if the meeting, once called, were unduly delayed. I also bear in mind that the first question the Court has to ask is what case has been made out for an extension of time under section 1322(4)(d), and it is only in considering possible answers to that question that any further question arises, of whether a particular extension would cause substantial injustice.
[18] National Roads & Motorists' Association Ltd v Parkin [2004] NSWSC 296 [73] (Campbell J).

In relation to s 250N of the Act, as set out already, the purpose of the section is to mandate a regular forum at which shareholders can meet with the management of the company (including the directors) to review the operations and financial accounts of the company for the previous financial year. The AGM is, in my view, an important meeting that provides shareholders with the opportunity to ask questions of both management and the company's auditors.
Where an application for an extension of time to hold an AGM is made to ASIC, ASIC Regulatory Guide No 44 sets out the matters that ASIC takes into account in making its decision. Put simply, ASIC's position is that it will usually only grant an extension if the basis for the request arises from factors outside of the company's control, and it is in the interests of the company's shareholders.
ASIC is guided by previous decisions of the court, including Bowen CJ's comments in Re Gem Exploration and Minerals NL that AGMs are 'an important safeguard for shareholders, investors and creditors of companies' which should only be relaxed where good cause is shown.[19]
[19] Re Gem Exploration and Minerals NL [1975] 2 NSWLR 584.
In this case, the plaintiff relied primarily on three matters which, in its submission, made it appropriate for the time period to be extended. First, it relied on its complaint to Treasury, on the basis that this may have an impact on who should be entitled to vote at the AGM and EGM. Second, it contended that the question as to who had control of the board after the AGM was likely to have a significant impact on the commercial direction of the Company, including whether the Company stayed effectively mothballed or started to ramp-up, including by proceeding with various studies. The identity of the board may also impact various commercial decisions, including entry into or extensions of various commercial agreements. Third, the plaintiff submitted that it is in the interests of all directors and shareholders of the Company, as well as in the public interest, to have the potential breach of the FIRB Act investigated and addressed before the AGM is held.
Senior counsel for the plaintiff accepted that the making of the complaint to Treasury was not of itself a sufficient basis on which the court should exercise its discretion to grant the extension sought. In this case, the additional matters that were relied on were: the specific issues that arose from the critical minerals policy of the Australian Government, which covers lithium; the plaintiff's status as a lithium exploration company, which is on the verge of obtaining its mining licence; the details of the allegations raised; the likelihood that if the AGM proceeds, there is likely to be a change in the board and with that change, a change in the focus of the Company, and the resulting impact on various commercial agreements. The plaintiff also referred to and relied upon the support from two of its major shareholders for the application.
In support of its application, the plaintiff placed significant reliance on the decision of Black J in Re Northern Minerals Ltd.[20] While I accept that there are some similarities to the facts of that case, there are two important distinctions between that case and the application before me. First, the application before his Honour was not an application for an extension of time to hold the company's AGM. That extension of time had already been granted by ASIC. After this extension was granted, a s 249D notice was issued by a shareholder. It was this meeting that was the subject of his Honour's orders, on the basis that the meeting should be held at the same time as the AGM. In this regard, I consider that his Honour's decision is consistent with the orders I made on the hearing of the originating process. Second, well prior to the originating process being filed in Re Northern Minerals Ltd, the Treasurer had issued an order under s 67 of the FIRB Act to a shareholder of Northern Minerals prohibiting the acquisition of any additional interest in the company or the interest of its proportion of its shareholding in the company beyond 9.98%. There was, however, in that case, an ongoing issue as to whether there had been compliance with the order.
[20] Re Northern Minerals Ltd [2023] NSWSC 1568.
The other decisions relied on by the plaintiff concerned applications where there was an agreed transaction in the process of implementation which may render the AGM irrelevant. That is clearly not the position in this case.
Senior counsel for the defendant denied that any of the matters relied on by the plaintiff were sufficient to make it appropriate for the court to grant the extension sought. In the defendant's submission, the plaintiff had simply failed to identify or clearly articulate what was the event or matter that was to occur that would justify the making of the orders sought. In the defendant's submission, there was, at present, significant uncertainty as to whether there was any investigation occurring, when any investigation would be complete, and how anyone would know when this occurred. If this uncertainty was not going to be resolved within a relatively definitive period of time, in senior counsel's submission, there was no basis to grant the extension sought. It was emphasised that it is clear from the terms of the Act that shareholders of public companies are entitled to have a regular opportunity to attend a meeting at which they can vote as to who should be the directors of the company and that the company's shareholders should not be denied that opportunity.
On the basis of the evidence before me, I accept and find the following:
(a)The Treasury has issued a public policy document, being Guidance Note 8: National Security, which provides guidance as to when the Treasurer will act under the FIRB Act for critical minerals projects, which I accept includes lithium projects.
(b)The Treasurer has acted to make orders under the FIRB Act in relation to the lithium projects.
(c)The plaintiff has made a complaint to the Treasurer about a possible breach of the FIRB Act. This complaint concerns shareholdings in the plaintiff well in excess of 20% of its issued shares.
(d)Following this complaint being lodged, there has been further communication between the representatives of the plaintiff and its solicitors with the Treasury in relation to the complaint.
(e)A possible outcome of any investigation is that the Treasurer could take steps which affect the ability of certain shareholders to vote at any general meeting of the Company.
(f)If these shares are voted at any general meeting before any investigation is concluded, it is possible that this could impugn the result at the general meeting of the Company.
(g)If there a change in the directors of the plaintiff at the AGM, there is a risk that the shareholders the subject of the complaint will control the board, change the direction of the Company, and make decisions that may prove difficult to unwind.
(h)At present, the plaintiff has complied with all of its financial reporting obligations by the statutory deadline.
Given these matters, I consider that for two primary reasons, subject to the question as to whether this will cause any party substantial prejudice, it is appropriate to exercise my discretion to grant an extension of time for the holding of the AGM, as well as the EGM.
First, I am satisfied that the circumstances that gave rise to the complaint and the actions of Treasury in investigating the complaint are matters which are outside the plaintiff's control. The plaintiff does not control the process nor the timing of any investigation. It is important to stress that I do not consider that the making of a complaint to a regulator would by itself be a sufficient basis on which to grant the extension of time sought. The additional relevant factors in this case are that the plaintiff's project is a critical minerals project, which is an area of particular focus by Treasury, as set out in the policy document that I have referred to, and that actions have been taken in relation to other lithium projects. I also refer to the second primary reason as an additional relevant factor.
The second primary reason is that the matters that are the subject of the complaint could impact on who is entitled to vote on the composition of the board, and ultimately the control of the Company. In my view, it is in the interests of all shareholders of the Company for there to be greater certainty as to the issues raised in the complaint prior to the AGM and EGM being held.

Will granting any extension of time cause any substantial injustice to the defendant or the plaintiff's shareholders?

In considering this issue, previous authorities have determined that 'injustice' within s 1322 of the Act requires the Court to consider the effect of the irregularity sought to be cured, as well as the effect of the proposed order.[21] The court must consider that the injustice is 'real, and not merely insubstantial or theoretical prejudice'.[22] A degree of prejudice to a person or persons may be outweighed by the 'overwhelming weight of justice'.[23] In considering this question, it is important to emphasise that:[24]
detriment per se is not the same as substantial injustice; that must depend on whether the remedial order in giving rise to that detriment is unjust in the sense of causing such prejudice overall as to be unfair or inequitable, taking into account the interests of all of those directly affected by such dispensation.
[21] An v Joo [2019] NSWSC 39 [34].
[22] Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACLC 787, 790.
[23] Re Compaction Systems Pty Ltd [1976] NSWLR 477, 493; (1976) 2 ACLR 135, 150.
[24] Super John Pty Ltd v Futuris Rural Pty Ltd [1999] NSWSC 627 [14]; (1999) 32 ACSR 398, 402.
In considering whether there will be substantial injustice caused by the extension sought, the commercial interests of the plaintiff are not a matter that can be taken into account. This is because these are matters for the directors and shareholders of the plaintiff.
The defendant says that the shareholders will suffer substantial injustice if the extension of time is granted as they will be denied the opportunity to vote on who they consider should be the directors of the plaintiff and to have the affairs of the plaintiff conducted in a certain manner. Based on the proxy report annexed to Mr Mitchell's confidential affidavit, I accept that there is a significant cohort of shareholders who consider there should be a change in the board of directors of the Company.
However, for the following reasons, I do not consider the defendant or the Company's shareholders will suffer any substantial injustice if a relatively short extension of time is granted.
First, I do not accept that the matters raised by the defendant mean there will be substantial injustice within the meaning of that phrase in s 1322 of the Act if an order is made for an extension of time.
Second, granting an extension will not deprive the defendant or its shareholders of the opportunity to vote on who the directors of the Company should be but will only delay it. I do not consider that an appropriate extension of time will cause substantial injustice.
The remaining question then is the appropriate length of any extension. Both parties accepted that if the court were minded to grant an extension of time to a date in 2025, any meeting of the Company should not be held during January.
In reaching a decision in relation to the appropriate length, I take account of the fact that notice of at least 28 days is required to be given at the meeting, given that the plaintiff is a public company. On the assumption that there are shareholders who have elected to receive hard copies of notices from the plaintiff, any notice given by post is deemed to have been received either one day after posting, if the plaintiff has the standard public company constitution, or the three days after posting, if it is governed by s 249J(4) of the Act.
The plaintiff seeks an extension of time until 20 March 2025 to enable the investigation to be completed prior to the dispatch of the notice of meeting. In my view, an extension of this length of time is not required. In my view, if the meeting is adjourned until a date which is approximately two weeks after it is reasonably anticipated that any investigation will be completed one way or another, this will enable the plaintiff and its shareholders to be aware of the outcome prior to voting on any resolutions at the meeting.
Given all of the matters raised on the application, I consider it would be appropriate to grant an extension of time for the holding of the AGM and EGM, but only until 5.00 pm on 14 February 2025. In my view, this date appropriately balances the concerns that have been raised by the plaintiff, the rights of all shareholders to be able to attend an AGM of the Company in a reasonable timeframe, as well as the interests of the defendant.
Finally, as I set out above in my history of the factual background to this matter, the two non-executive directors of the Company have previously announced their intention to retire at the 2024 AGM. In my view, I do not consider there is any reason that their resignation should not take effect from 20 November 2024 as originally contemplated. In my view, any extension of time should be conditioned on this occurring.
I will hear from the parties as to the appropriate orders to give effect to these reasons and as to the costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
26 NOVEMBER 2024