Hongkong Xinhe International Investment Company Limited v Bullseye Mining Limited [No 2] - [2020] WASC 446

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HONGKONG XINHE INTERNATIONAL INVESTMENT COMPANY LIMITED -v- BULLSEYE MINING LIMITED [No 2] [2020] WASC 446
CORAM:   HILL J
HEARD:   27 NOVEMBER 2020
DELIVERED          :   27 NOVEMBER 2020
PUBLISHED           :   4 DECEMBER 2020
FILE NO/S:   COR 83 of 2020
BETWEEN:   HONGKONG XINHE INTERNATIONAL INVESTMENT COMPANY LIMITED
Plaintiff

AND

BULLSEYE MINING LIMITED
First Defendant

PETER JOSEPH BURNS
Second Defendant

PETER GERARD BURNS
Third Defendant

DARIENA CATHERINE ANN MULLAN
Fourth Defendant

Catchwords:

Corporations - Interlocutory application to restrain annual general meeting of company - Whether first defendant complied with notice provisions in Corporations Act 2001 (Cth) and company's constitution -
Requirements for service by post - Serious question to be tried - Balance of convenience

Corporations - Interlocutory application for relief under s 1324 of Corporations Act - Whether substantial injustice to any shareholder by failure to comply with notice requirements

Legislation:

Acts Interpretation Act 1901 (Cth), s 29
Corporations Act 2001 (Cth), s 249H, s 249J, s 249L, s 249Z, s 250N, s 1322(2), s 1324(4), s 1324(6)

Result:

Plaintiff's interlocutory application dismissed
First defendant's interlocutory application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	M L Bennett & A J Tharby
First Defendant	:	M C Goldblatt
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	Murcia Pestell Hillard
Second Defendant	:	McNally & Co
Third Defendant	:	McNally & Co
Fourth Defendant	:	McNally & Co

Case(s) referred to in decision(s):

Atlas Holdings Pty Ltd (Trustee), Re Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd [2017] FCA 923; (2017) 122 ACSR 345
Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd [2002] NSWSC 741; (2002) 42 ACSR 605
Australian Securities and Investments Commission v Parkes [2001] NSWSC 377; (2001) 38 ACSR 355
Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561
Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114
CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd [2016] WASC 231
Re Broadway Motors Holdings Pty Ltd (in liq) (1986) 6 NSWLR 45
Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Turnbull v National Roads and Motorists' Association Ltd [2004] NSWSC 577; (2004) 186 FLR 360
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396
Western Ventures Pty Ltd v Resource Equities Ltd [2004] WASC 222; (2004) 51 ACSR 293

HILL J:

(This decision was delivered extemporaneously on 27 November 2020 and has been edited from the transcript).

On 25 November 2020, the plaintiff filed an interlocutory process seeking an injunction under s 1324(4) of the Corporations Act 2001 (Cth) (the Act) for orders restraining the first defendant from holding its annual general meeting for the year ended 30 June 2020 until a date after 14 December 2020. The meeting is scheduled to be held at 3.00 pm (WST) on Monday, 30 November 2020.
The basis for the application is the contention by the plaintiff that the first defendant has failed to give notice of a general meeting to its members in accordance with the requirements of the first defendant's Constitution and the Act.
In support of the application the plaintiff filed two affidavits of Alexander James Tharby, a solicitor employed by Bennett + Co, the solicitors for the plaintiff; an affidavit of Graham Ian Smith; an affidavit of Sam Cheng; and an affidavit of Luke Wang.
The application is opposed by the first defendant, who filed five affidavits in opposition to the application. The first defendant contends that notice of the meeting has been provided to all shareholders in accordance with the Constitution. The first defendant also raises objections to the undertaking as to damages filed by the plaintiff and raises the question as to whether this is a final or interlocutory hearing.
On 26 November 2020, the first defendant filed an interlocutory process seeking orders under s 1322(4) of the Act, declaring that the notice of the annual general meeting is not invalid by reason of any defect, irregularity or deficiency in the giving of notice, or by reason of a contravention of s 249Z of the Act.
The hearing of both applications came before me on an urgent basis this morning.

Factual background

Mr Smith's evidence is that he is a director of Avenira, a shareholder of the first defendant. On 17 November 2020, he became aware that the first defendant had convened its annual general meeting for 30 November 2020. At that time he had not received notice of the annual general meeting, nor a proxy form. For that reason, he telephoned a director of the first defendant who subsequently emailed the documents to him that same day. I note that Mr Smith's evidence is that he has still not received the documents in hard copy.[1]
[1] Affidavit of Graeme Ian Smith filed 26 November 2020.
Mr Cheng's evidence is that on 5 November 2020, he received an email from the first defendant attaching a copy of the notice of the annual general meeting and annual report. He received a hard copy of the annual report on 12 November 2020. His evidence is that he did not receive a hard copy of the notice of meeting or proxy form until 24 November 2020. His affidavit attaches an envelope postmarked 20 November 2020.[2] Mr Cheng deposes that his address is also the address of another shareholder of the first defendant and that he has not received in the mail a copy of the annual report addressed to that shareholder.[3]
[2] Affidavit of Sam Cheng filed 26 November 2020 'SC7'.
[3] Affidavit of Sam Cheng filed 26 November 2020 [8].
Mr Huang's evidence is that the plaintiff's address on the first defendant's share register is an address in Hong Kong that is monitored by the plaintiff's parent company. He deposes that the usual practice is that an employee of the parent company will forward any correspondence received by it to him by email. He received a copy of the notice of the annual general meeting and annual report by email on 5 November 2020 directly from the first defendant, but has not received a copy of the proxy form for the annual general meeting.[4]
[4] Affidavit of Luke Huang filed 26 November 2020.
The first defendant adduced evidence from two staff members of Computershare Investor Services Pty Ltd,[5] who provide share registry support services to the first defendant, as well as evidence from Peter Gerard Burns, a director of the first defendant, Ms Razija Ramic, Mr Burns' executive assistant, and Mr Murdzoski, a solicitor employed by the first defendant's solicitors.
[5] Affidavit of Nicole Lewis filed 26 November 2020; Affidavit of Eda Albert filed 26 November 2020.
The evidence from the representatives of Computershare is that there are 292 members of the first defendant and that on 5 November 2020 Computershare prepared 292 personalised proxy forms which were printed and placed in envelopes.
Ms Lewis' evidence is that she arranged for Ms Albert to complete a number of forms in respect of these envelopes. These forms state that on 5 November 2020, 142 letters were sent within Australia, and 50 sent internationally.[6] Her evidence is that no documents have been sent on behalf of the first defendant since that date.[7] These forms are consistent with a receipt from Australia Post, which is time and date stamped 5 November 2020, at 4.10 pm.[8]
[6] Affidavit of Nicole Lewis filed 26 November 2020 'NL7'.
[7] Affidavit of Nicole Lewis filed 26 November 2020 [19].
[8] Affidavit of Nicole Lewis filed 26 November 2020 'NL8'.
Ms Albert's evidence is broadly consistent with that of Ms Lewis, save in one respect. Ms Albert deposes that on 5 November 2020 she attended Australia Post at Cloisters Square and posted 292 envelopes by ordinary (priority) pre‑paid post.[9] She does not address in her evidence what she means by the term 'posted'. Her evidence is that:[10]
An Australia Post lodgement receipt was prepared in my presence from the information in such forms, without the number of envelopes being physically counted by Australia Post.
[9] Affidavit of Eda Albert filed 26 November 2020 [7].
[10] Affidavit of Eda Albert filed 26 November 2020 [7].
Ms Albert deposes that there is a discrepancy in the forms and the lodgement receipt because she incorrectly stated in the forms that there were 142 envelopes being posted within Australia instead of 242. Ms Albert says that this was an inadvertent error, and that the correct number was 242.[11]
[11] Affidavit of Eda Albert filed 26 November 2020 [8].
Mr Burns deposes that 30 November 2020 is the last day that the annual general meeting of the first defendant can be held under s 250N of the Act. He was aware that it was necessary for all notices of meeting to be dispatched by 5 November 2020 to ensure that notice was given in accordance with the Act and the first defendant's Constitution.[12] His evidence is that he did not notice when he received the email from Computershare that the documents from Australia Post referred to only 142 envelopes being posted within Australia.[13]
[12] Affidavit of Peter Gerard Burns filed 26 November 2020 [7].
[13] Affidavit of Peter Gerard Burns filed 26 November 2020 [9].
Mr Burns' evidence is that he received the notice and personalised proxy form at his address that is shown on the share register of the first defendant. The envelope contained a date stamp of 18 November 2020.[14] He deposes that neither he, nor anyone else, to his knowledge, arranged for the notice of the annual general meeting or proxy forms to be posted after 5 November 2020.[15]
[14] Affidavit of Peter Gerard Burns filed 26 November 2020 [11], 'PGB19'.
[15] Affidavit of Peter Gerard Burns filed 26 November 2020 [12].
Ms Ramic deposes to the process she adopted in emailing each of the shareholders of the first defendant on the electronic emailing list a copy of their personalised proxy form.[16]
[16] Affidavit of Razija Ramic filed 27 November 2020.
Finally, Mr Murdzoski's affidavit, which was sworn this morning, annexes two proxy reports that he received from Computershare earlier today.[17] These reports disclose that as at the close of business yesterday, 208 shareholders, comprising 56.74% of the shares on issue of the first defendant, have lodged proxies in respect of the annual general meeting.
[17] Affidavit of Daniel Murdzoski filed 27 November 2020, 'DM1'.

Requirements for notice of meetings

The requirements for the notice of meetings are set out in both the Act and also the Constitution of the first defendant.
Turning firstly to the Act, s 250N of the Act requires a public company to hold an AGM at least once in each calendar year, and within five months after the end of its financial year.
Pursuant to s 249H(1) of the Act, at least 21 days' notice must be given of a meeting of a company's members. There are a number of exceptions to this requirement, none of which are material to the applications before me.
Section 249J(1) of the Act requires a company to give written notice of a general meeting to each member entitled to vote at the meeting. Section 249J(3) permits notice to be given personally, by post, and by sending it to the 'electronic address (if any) nominated by the member'.
Section 249L specifies the requirements for the contents of the notice of meeting. Specifically the notice of meeting must set out the place, date and time for the meeting; the general nature of the meeting's business; if a special resolution is proposed, the intention to propose a special resolution and the nature of the resolution. And finally, if a member is entitled to appoint a proxy, the notice of meeting must contain a statement setting out the following: first, that the member has a right to appoint a proxy; second, whether or not the proxy needs to be a member of the company; and third, that a member who is entitled because they have two or more votes may appoint two proxies and may specify the proportional number of votes each proxy is entitled to exercise.
I note that there is no obligation under the Act for a company to send proxy forms to its members. However, by reason of s 249Z of the Act, where a company sends a proxy form for a meeting to some members, the company is required to send the form to all members entitled to appoint a proxy to attend and vote at the meeting.
Turning then to the Constitution of the first defendant,[18] cl 22 of the Constitution addresses the specific notice provisions.
[18] Affidavit of Alexander James Tharby filed 25 November 2020 'AJT16'.
Clause 22.2 permits notices to be delivered to a street address sent by pre-paid ordinary post to a street or postal address or sent by email.
Clause 22.5 provides that the email address of a member is that 'which the member may specify by written notice to the Company as the … email address to which notices may be sent to the Member'.
Clause 22.9 relevantly provides that notices sent by post are taken as given, served and received on the business day after posting, or if sent by facsimile or email, at the time transmission is completed.
In considering what is meant by 'service', I have had regard to s 29 of the Acts Interpretation Act 1901 (Cth), which provides that where an Act requires service by post, service is deemed to be effected by properly addressing, prepaying, and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post.

Legal principles governing grant of injunction

The legal principles governing this court's power to grant injunctions under s 1324 of the Act were summarised by Palmer J in Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd.[19]
[19] Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd [2002] NSWSC 741; (2002) 42 ACSR 605 [36].
First, the jurisdiction which the court exercises under s 1324 of the Act is a statutory jurisdiction and not in the court's traditional equity jurisdiction.
Second, Parliament has made it increasingly clear by successive statutory enactments that the court in exercising its statutory jurisdiction is not to be confined by the considerations which would be applicable if it was exercising its traditional equity jurisdiction.
Third, among the considerations which the court must take into account in an application for an injunction under s 1324 of the Act, are the wider issues referred to by Austin J in Australian Securities and Investments Commission v Sweeney[20] and Australian Securities and Investments Commission v Parkes,[21] as well as Davies AJ in Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd.[22] These issues can be gathered under the broad question as to whether the injunction would have some utility or serve some purpose within the contemplation of the Act.
[20] Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114.
[21] Australian Securities and Investments Commission v Parkes [2001] NSWSC 377; (2001) 38 ACSR 355.
[22] Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561.
Fourth, these considerations are to be taken into account regardless of whether the application is for a permanent injunction under s 1324(1) or an interim injunction under s 1324(4).
Fifth, when an application under s 1324(4) is made by ASIC, rather than a private litigant, the court is more likely to give greater weight to the broader question as to whether the injunction would serve the purpose within the contemplation of the Act.
Sixth, where there is an appreciable, that is, not fanciful, risk of particular future contraventions of the Act by a defendant, it would serve a purpose within the contemplation of the Act that the court grant not only a permanent injunction but, in an appropriate case, an interim injunction restraining such conduct.
Seventh, although the question is whether there is a serious question to be tried, and where the balance of convenience lies will not circumscribe the court's consideration in an application for an interim injunction, the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the court, even where the protection of the public is said to be involved.
Eighth, the balance of convenience will be viewed differently according to whether the applicant under s 1324(4) is ASIC or a private litigant. Where ASIC is acting to protect the public interest, the absence of an undertaking as to damages, which is exempted by s 1324(8), will usually be of little consequence. However, where the proceedings are brought to advance the plaintiff's private interests, then if such an undertaking is not proffered, even though it may be likewise exempted by s 1324(8), the court may take that circumstance into account as a matter of practicality, common sense and fairness in determining where the interests of justice lie and whether it is desirable to grant the injunction.
There is a debate in the authorities as to whether in respect of a grant of an interim injunction, Palmer J's summary is an accurate summary of the applicable principles. In CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd,[23] Le Miere J referred to the competing views and concluded:
Although traditional equitable principles do not circumscribe the court's consideration of an application for an interim injunction under s 1324(4) of the Corporations Act, the court will always examine carefully whether there is a serious question to be tried and where the balance of convenience lies and will not grant an injunction where it would not have done so if it were exercising its traditional equity jurisdiction unless there are matters relating to the statutory obligation sought to be enforced or the public interest which require the grant of the injunction.
[23] CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd [2016] WASC 231 [13].
Mr Goldblatt, who appeared as counsel for the first defendant, contended that this was an application for a final injunction, and not an interlocutory injunction and that accordingly, the test for the court was whether the plaintiff had established on the balance of probabilities a breach of the Act that required an injunction to be granted.
I note that the application is brought by the plaintiff as an interlocutory application, and that the application is brought under s 1324(4) of the Act. I also note that courts have previously proceeded without deciding the matter on the basis that such an application is an interlocutory application.
Given that the application by the plaintiff is advanced only as an interlocutory application, in determining this application I will apply the general principles that govern the grant of an interlocutory application, namely whether there is a serious question to be tried and where the balance of convenience lies.
In doing so I note that on an application for an interlocutory injunction the court is not undertaking a preliminary trial or giving relief on a forecast of the ultimate result. However, it is necessary for the court to assess the strength of the plaintiff's probability of ultimate success as this is a critical factor in the determination of the application.

Serious question to be tried

The plaintiff asserts that on the evidence before the court, notice has not been provided to all shareholders of the first defendant at least 21 days prior to the annual general meeting of the first defendant. The first defendant disputes this and says that the evidence of the representatives of Computershare is that notices of meeting and proxy forms were posted on 5 November 2002 to the addresses of members shown in the register of members.

On the evidence before the court, I accept the first defendant prepared 292 notices of meeting and proxy forms, and that notices of meeting and proxy forms were posted on 5 November 2020 to the addresses of at least 192 members of the first defendant.
Ms Albert's evidence is that there is a discrepancy between the forms of the first defendant and the receipt from Australia Post. There is in fact no such discrepancy; both indicate that 142 letters were posted within Australia. The discrepancy is between the 292 proxy forms that were prepared and placed in envelopes and 'posted by Ms Albert', and the evidence that the first defendant only paid for postage of 192 letters. It is not possible on the evidence before me to determine whether all 292 letters were in fact posted, particularly given the plaintiff's evidence that letters have not been received by a number of shareholders, and the date and time stamps on the envelopes received by some shareholders of the first defendant, including Mr Burns.
I am unable to resolve this issue on an interlocutory basis.
Under both the Act and the Constitution, I consider that service of the notice of meeting by post requires the notice of meeting to be sent in addressed pre‑paid envelopes. The evidence before the court is that there has been pre‑payment of 192 envelopes.
The first defendant relied on s 1322(2) of the Corporations Act, which provides that a proceeding is not invalidated because of any procedural irregularity unless the court is of the opinion that the irregularity has caused, or may cause, substantial injustice that cannot be remedied by any order of the court.
The onus of satisfying the court that there is a substantial injustice that cannot be remedied is on the party seeking to attack the validity of the proceeding.[24]
[24] Atlas Holdings Pty Ltd (Trustee), Re Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd [2017] FCA 923; (2017) 122 ACSR 345 [31].
I accept that the reference to a defect, irregularity of notice or time in s 1322 includes a reference to a defect or irregularity in the issue of a notice of meeting.[25] At this stage, I am unable to conclude one way or another whether any substantial injustice has been caused by the defect in service of the notice of meeting. There is no evidence before me that shareholders of the first defendant are unaware of the general meeting or are unable to attend or vote at the meeting because of any failure to give notice in accordance with the Act or the Constitution. On this basis I consider that the plaintiff has not discharged its onus under s 1322(2) of the Act.
[25] Western Ventures Pty Ltd v Resource Equities Ltd [2004] WASC 222; (2004) 51 ACSR 293 [5]; Re Broadway Motors Holdings Pty Ltd (in liq) (1986) 6 NSWLR 45.
However, given the defect in notice, I accept there is a serious question to be tried as to whether the first defendant has complied with the Act and the Constitution in providing notice of its annual general meeting to its shareholders.

Balance of convenience

I turn then to the balance of convenience.
Neither party has adduced any evidence in relation to the balance of convenience. The plaintiff acknowledges that the grant of an injunction would cause some inconvenience to the first defendant in having to reschedule its AGM, as well as to local shareholders who have made plans to attend in person.[26] However, given the meeting is to be held at the registered office of the first defendant, the plaintiff contends that there will be limited costs associated with any postponement. The plaintiff submits that the greater prejudice will be to the shareholders of the first defendant who have not had proper, or any, actual notice of the annual general meeting and who cannot cast their vote because they have not received a personalised proxy form.[27]
[26] Plaintiff's submissions [18].
[27] Plaintiff's submissions [19].
As has been noted by courts on previous occasions, in proceedings brought by a shareholder to restrain the holding of a general meeting, the court should be cautious before interfering on an interlocutory basis in the conduct of a meeting prior to it being held.[28] Courts have long demonstrated an unwillingness to interfere with the democratic processes of a corporation except where it is necessary to do so.[29] A court should not readily restrain the deliberations of shareholders at properly convened meetings, but rather should allow those shareholders to consider and decide upon matters put to them. Except in the clearest of cases, it will often be desirable to ascertain the will of the meeting before considering whether to interfere in the deliberations.
[28] Atlas Holdings Pty Ltd (Trustee), Re Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd [54]; Turnbull v National Roads and Motorists' Association Ltd [2004] NSWSC 577; (2004) 186 FLR 360 [51].
[29] Atlas Holdings Pty Ltd (Trustee), Re Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd [54].
In considering whether an injunction ought be granted, it is necessary to consider the nature and strength of the plaintiff's case, as well as the effect and impact of granting or refusing an interlocutory injunction.
On the evidence before me, I accept that at least 192 shareholders of the first defendant are deemed to have received 21 days' notice of the meeting. In respect of the remaining 100 shareholders, I am unable to form a view on the evidence before me as to, firstly, who they are and, secondly, whether they have received notice in accordance with the provisions of the Constitution of the first defendant, whether they are aware of the meeting, and whether they are able to attend and vote at the meeting.
Importantly, there is no evidence before me that the plaintiff, or any other shareholder, will suffer any detriment if the meeting proceeds as scheduled on Monday, 30 November 2020. In this regard, I note that the plaintiff, and any other party who has not received a proxy, is able to attend the meeting in person or by way of a corporate representative.
For these reasons, I decline to restrain the meeting from proceeding.
If I am wrong on the question that this is an interlocutory hearing, I will briefly address the application as a final injunction. On the balance of probabilities, I am satisfied on the evidence before me that 192 shareholders of the first defendant received notice of the meeting by pre‑paid post, and that 100 have not. However, the question as to whether an injunction should be issued is a discretionary remedy. For the reasons I have already given in relation to s 1322(2) of the Act, I consider that at this stage I should not exercise my discretion to grant an injunction. Until the meeting has occurred, the court is not able to form any view as to whether substantial injustice has occurred.

Defendant's interlocutory process

I turn then to consider the first defendant's interlocutory application whereby the first defendant seeks orders under s 1322(4) of the Act.
In considering an application under s 1322(4) of the Act, the essential principles are as follows:[30]
(a)the prescriptive requirements of the wording in s 1322(4)(a) and the pre-conditions in s 1322(6) need to be satisfied;[31]
(b)the court retains a discretion under s 1322(4)(a) as to whether it makes the orders sought;
(c)the broad powers reflect a legislative policy that the law should not inflict unnecessary liability or inconvenience, or invalidate transactions, because of non-compliance with its requirements where such non-compliance is the product of honest error or inadvertence and where the court can avoid its effects without prejudice to third parties or to the public interest in compliance with the law;[32]
(d)implied limitations to the broad powers in s 1322 will not be readily implied.[33]
[30] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174 [20].
[31] Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 [43], [53] and [64].
[32] Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418 [29].
[33] Weinstock v Beck [43], [55] - [56] and [64].
Section 1322 is remedial in character and should be applied broadly. That is, under this section the court has power to declare that an act, matter or thing, is not invalid by reason of a breach of a provision of the Act, or a provision of the Constitution of a company. The remedial power of the court is, however, conditioned on the court being satisfied that no substantial injustice has been, or is likely to be, caused to any person.
As I have already indicated, at this stage I am not satisfied on the evidence before me that no substantial injustice has been, or is likely to be, caused to any persons. If proxy forms have not been provided to, or received by, 100 shareholders of the first defendant, it may be that substantial injustice has been, or is likely to be, caused to these shareholders.
I consider that at this stage it is premature to make any declaration in respect of the notice of meeting until the meeting has been convened and held. If the evidence that is adduced at a final hearing demonstrates that significant numbers of shareholders were not provided with a proxy form, and were unable to attend in person or by a corporate representative, and were therefore unable to cast a valid vote at the meeting, the plaintiff may be entitled to seek orders in respect of the validity of the meeting and any resolutions passed at it. If, on the other hand, the evidence is that significant numbers of shareholders voted, and there was no evidence of any substantial injustice, the first defendant may be entitled to relief under s 1322(4) of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Hill
4 DECEMBER 2020