In the matter of Australian Wealth Management Pty Limited

[2005] FCA 311

FEDERAL COURT OF AUSTRALIA

In the matter of Australian Wealth Management Pty Limited [2005] FCA 311

Re Golden Gate Petroleum Pty Limited [2004] FCA 1119 applied

IN THE MATTER OF AUSTRALIAN WEALTH MANAGEMENT PTY LIMITED
NSD 217 OF 2005

HELY J
15 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 217 OF 2005

BETWEEN: AUSTRALIAN WEALTH MANAGEMENT PTY LIMITED
PLAINTIFF

JUDGE:	HELY J
DATE OF ORDER:	15 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth), the time for making an application pursuant to s 723(3) and s 724(1)(b) for the admission of the securities the subject of the disclosure document lodged by the plaintiff with the Australian Securities & Investment Commission on 3 February 2005 (‘the Prospectus’) to quotation be extended until 5 pm on 16 February 2005.

2.The plaintiff serve a copy of these orders on the Australian Securities & Investment Commission by 5 pm today.

3.Notice of the terms of these orders be given to the persons who have accepted the offer made in the Prospectus.

4.Any of those persons who claim to have suffered substantial injustice by reason of these orders shall have liberty to apply to vary or discharge these orders for a period of 21 days from receipt of the notice referred to in Order 3.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 217 OF 2005

BETWEEN:	AUSTRALIAN WEALTH MANAGEMENT PTY LIMITED PLAINTIFF
JUDGE:	HELY J
DATE:	15 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The nature of this application and the circumstances in which it comes to be made are described in a document styled ‘Submissions for the Applicant’ which I have placed with the papers so that they form part of the Court record.  I will not endeavour to summarise the contents of that document here. 

2. No person has been joined as a defendant to this application.  However, it is sufficient for present purposes if I record the following.  First, the application is of a type frequently made without the joinder of a defendant.  Second, in a letter from the Australian Stock Exchange (‘the ASX’) to the plaintiff’s solicitors dated 15 February 2005, the ASX has confirmed that it is not aware of any reason why if the Court were to grant the orders sought by the company, the ASX would not proceed in the usual way to grant quotation of the securities.  Third, in a letter dated 15 February 2005, the Australian Securities & Investments Commission (‘ASIC’) has confirmed that it has no objection to the making of the orders sought. 

3. I am satisfied on the materials before me that the failure to make the application to the ASX within the prescribed time was due to inadvertence.  The terms of the share issue are such that it has been made to 83 financial planners, who have accepted the offers contained in the prospectus, upon the basis that they will receive one free share for every four shares accepted.  As such, on the basis of the material which is before me, it appears that no person would suffer substantial injustice were I to make the orders sought. 

4. However, the effect of making the orders would be that 83 people who are not parties to this application and who have no notice of it would lose a right to which they are entitled by statute to extricate themselves from the commitment flowing from their acceptance of the offers contained in the prospectus.  It may be very unlikely that they would wish to take advantage of that entitlement, but nonetheless it seems to me to be consistent with principle that their entitlement to do so should be preserved at least for a short period.  That is certainly the approach which was adopted by Lee J in Re Golden Gate Petroleum Pty Limited [2004] FCA 1119.

5. I therefore make the following orders:

   1.Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth), the time for making an application pursuant to s 723(3) and s 724(1)(b) for the admission of the securities the subject of the disclosure document lodged by the plaintiff with the Australian Securities & Investment Commission on 3 February 2005 (‘the Prospectus’) to quotation be extended until 5 pm on 16 February 2005.

   2.The plaintiff serve a copy of these orders on the Australian Securities & Investment Commission by 5 pm today.

   3.Notice of the terms of these orders be given to the persons who have accepted the offer made in the Prospectus.

   4.Any of those persons who claim to have suffered substantial injustice by reason of these orders shall have liberty to apply to vary or discharge these orders for a period of 21 days from receipt of the notice referred to in Order 3.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             29 March 2005

Counsel for the Plaintiff:	K Rees
Solicitor for the Plaintiff:	Phillips Fox
Date of Hearing:	15 February 2005
Date of Judgment:	15 February 2005