MEC Resources Ltd and Innovation and Science Australia
[2021] AATA 4030
•3 November 2021
MEC Resources Ltd and Innovation and Science Australia [2021] AATA 4030 (3 November 2021)
Division:GENERAL DIVISION
File Number: 2021/3080
Re:MEC Resources Ltd
APPLICANT
AndInnovation and Science Australia
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:3 November 2021
Place:Perth
The Applicant’s request for a stay of the operation or implementation of the decision is refused.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – request for stay (AAT Act s 41(2)) – Applicant’s registration revoked under PDF Act s 47(1)(a) – Scott considerations applied – prospects of success – consequences of refusing stay – public interest and consequences to Respondent in carrying out its functions – whether applications would be rendered nugatory if stay refused – request for stay refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37, 41(2)
Corporations Act 2001 (Cth)
Pooled Development Funds Act 1992 (Cth) s 3, 19(1), 20A(2), 27, 27A, 42, 47, 47(1), 47(1)(a), 55
Tax Agent Services Act 2009 (Cth)
CASES
Birdseye and Tax Practitioners Board [2020] AATA 1250
Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219
Cross and Tax Practitioners Board [2020] AATA 1471
Dart and Director-General of Social Services (1982) 4 ALD 553
GJ Brown & Co Pty Ltd and Tax Practitioners Board (2016) 103 ATR 924; [2016] AATA 740
Menzies Institute of Technology and Australian Skills Quality Authority [2019] AATA 343
Poidevin and Australian Securities and Investments Commission (2018) 74 AAR 137; [2018] AATA 124
Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798
Stirling Skills Training (Inc) and Australian Skills Quality Authority [2019] AATA 1721
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047
Van Dieren and Australian Securities and Investments Commission [2019] AATA 4777
Woodbridge v Comcare (1994) 20 AAR 196; [1994] FCA 1249
Yvonne Anderson and Associates Pty Ltd and Tax Practitioners Board [2020] AATA 1881
REASONS FOR DECISION
Deputy President Boyle
3 November 2021
THE APPLICATION
By application lodged with the Tribunal on 12 May 2021, the Applicant seeks review of a decision made by the Respondent to revoke the Applicant’s pooled development fund registration pursuant to section 47(1) of the Pooled Development Funds Act 1992 (Cth) (PDF Act).
The Applicant now seeks a stay of the operation or implementation of the decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
BACKGROUND
By decision dated 3 February 2021 the Respondent decided to revoke the Applicant’s registration under s 47(1)(a) of the PDF Act on the basis that the Applicant had contravened ss 19(1), 27, 27A and 42 of the PDF Act. The Respondent advised the Applicant of that decision on 4 February 2021.[1]
[1] T31/456–7.
Under s 55 of the PDF Act, the Applicant sought internal review of the decision. By a decision dated 30 April 2021, the Respondent confirmed the decision and found that that Applicant had contravened ss 19(1), 20A(2), 27, 27A and 42 of the PDF Act.[2] I note that the decision had not found that the Applicant had contravened s 20A(2) of the PDF Act. The apparent addition of reference to a breach of s 20A(2) of the PDF Act in the review decision is not material to my decision herein.
[2] T38/510.
THE LEGISLATION
Section 3 of the PDF Act sets out the object of the Act as follows:
(1)The object of this Act is to develop, and demonstrate the potential of, the market for providing patient equity capital (including venture capital) to small or medium-sized Australian enterprises that carry on eligible businesses.
(2)To achieve this object, the Act establishes a scheme under which companies that provide that kind of capital can become pooled development funds (PDFs), which entitles them to more competitive tax treatment.
(Original emphasis.)
Section 47 of the PDF Act relevantly provides:
(1)Subject to this section, the Board may revoke a PDF's registration declaration if:
(a) the Board is satisfied that a provision of this Act has been contravened by, or in relation to, the PDF;
…
Section 41(2) of the AAT Act provides:
(2)The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
(Original emphasis.)
THE HEARING
The application for a stay was heard on 18 October 2021. The Applicant was represented by Mr T Houweling of Cornerstone Legal and the Respondent was represented by Ms C Thompson.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 26 August 2021 (A1) (Applicant’s SFIC);
(b)Affidavit of Mr David Leslie Breeze dated 7 September 2021 (A2);
(c)NAB Direct Credit Report and email exchange from the National Offshore Petroleum Titles Administrator and Response from Mr Breeze dated 19 July 2021 and 15 October 2021, and NAB Connect Direct Credit Report (A3); and
(d)Consideration by the Hon Keith Pitt of Petroleum Exploration Permit 11 (PEP 11) Application dated 12 February 2021 (R1).
In addition to the above documents, I also had before me the documents lodged by the Respondent pursuant to s 37 of the AAT Act (T documents), the Respondent’s Statements of Facts, Issues and Contentions (Respondent’s SFIC) and written submissions provided by each party.
CONSIDERATION
Paragraph 2 of the Applicant’s SFIC argues that there was no proper delegation of the Board of the Respondent to a Committee of the Respondent. The basis upon which that contention is made is set out in paras 9–13 of the Applicant’s SFIC. What is not spelt out in the Applicant’s SFIC, however, is what the Applicant says is the consequence of that lack of proper delegation.
The Respondent’s position, as advised by Ms Thompson at the hearing, is that there was a proper delegation, however, if there was not, then, as Ms Thompson put it “the [T]ribunal is not seized of power… then we’re in the wrong jurisdiction”.[3]
[3] transcript at 12.
I am, in any event, satisfied that even if there was not a proper delegation as claimed by the Applicant, the decision “is reviewable under the AAT Act, even if the administrative decision is legally ineffective or void”.[4]
[4] Woodbridge v Comcare (1994) 20 AAR 196; [1994] FCA 1249 at [59] and the authorities referred to therein.
It is generally accepted that the relevant considerations for the grant of a stay are those identified by President Downes J in Scott and Australian Securities and Investments Commission.[5] As I noted in Stirling Skills Training (Inc) and Australian Skills Quality Authority[6] at [35]–[36], a useful restatement of those considerations appears in Member Parker’s decision in Menzies Institute of Technology and Australian Skills Quality Authority[7] at [16].[8] As the Applicant noted in its submissions, the same considerations were applied by the Tribunal in Yvonne Anderson and Associates Pty Ltd and Tax Practitioners Board.[9]
[5] (2009) 51 AAR 114; [2009] AATA 798.
[6] [2019] AATA 1721.
[7] [2019] AATA 343.
[8] See also Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219 at [35] and Cross and Tax Practitioners Board [2020] AATA 1471 at [30].
[9] [2020] AATA 1881.
The considerations identified by President Downes J in Scott are:
(a)the prospects of success;
(b)the consequence for the applicant of the refusal of the stay;
(c)the public interest;
(d)the consequences for the respondent in carrying out its functions, depending on whether a stay is granted or not; and
(e)whether the application for review would be rendered nugatory if a stay were not granted.
The parties’ respective submissions largely addressed the considerations identified in Scott.
Prospects of success
The approach to be taken was summarised by Deputy President Redfern in Poidevin and Australian Securities and Investments Commission[10] [39]–[40] as follows:
39....Clearly, it is not the role of the Tribunal in an interlocutory application of this nature to conduct a review of the merits or strength of the arguments, even on a preliminary basis, because such an undertaking would not only be lengthy but it would be unlikely to take into account the possibility of further evidence and submissions that may be more appropriately advanced at the substantive hearing...
40.The Tribunal is, however, at least obliged to determine whether there are facts or circumstances or points of law that may be argued at a substantive hearing which may lead to a different result (see Zarfati v Australian and Securities Investments Commission [2008] AATA 989; (2008) 106 ALD 225). The Tribunal is not bound by the findings of the delegate but the decision nonetheless provides a sound basis for this assessment, particularly, as in this case, where the decision is detailed and discloses the evidence relied on, the findings of fact made and the reasoning process that led to the conclusions reached by the delegate. If the reviewable decision discloses findings and reasoning that an applicant cannot or does not challenge, this would be critical to the issue of prospects and would be a significant factor that would weigh against the granting of a stay. It is incumbent on the applicant for a stay to establish the existence of such facts and circumstances or the possibility of legal error that may lead to a different result, through new evidence or submissions that were not raised before the delegate or by contesting findings of fact or conclusions of law (or a combination of both) that are open to challenge.
[10] (2018) 74 AAR 137; [2018] AATA 124.
In Van Dieren and Australian Securities and Investments Commission[11] at [28]–[31] I summarised the law as to the level of possible or likely success in the substantive application that an applicant would need to establish for the purposes of this consideration in a stay application. In that case (at [28]) I referred to Senior Member Cameron’s statement in Technical Education Australia Pty Ltd and Australian Skills Quality Authority[12] of the required level of satisfaction, and (at [30]) to President Davies J’s finding in Dart and Director-General of Social Services[13] at 555.
[11] [2019] AATA 4777.
[12] [2018] AATA 3047.
[13] (1982) 4 ALD 553.
At [38] of Van Dieren, I identified what I consider to be the most appropriate tests:
...The prospects of success have, in my view, reached the level described by Senior Member Cameron in Technical Education Australia; “whether there exists facts and circumstances which would provide some basis for success”, and the level identified by Deputy President Redfern in Poidevin (see [22(e)] above) that “there are facts or circumstances or points of law that may be argued at a substantive hearing which may lead to a different result”.
The Applicant says that it intends to submit evidence of the new compliance framework which has been implemented following the reinstatement of Mr Breeze and that it will make submissions in respect of the actions of particular directors during the alleged period of contraventions of the PDF Act.[14]
[14] Applicant’s submissions in support of the stay application dated 30 September 2021, para 17.
Mr Breeze provided a detailed affidavit[15] and gave evidence at the hearing. The thrust of Mr Breeze’s evidence was that the various breaches of the PDF Act which gave rise to the Respondent’s decision to revoke the Applicant’s PDF registration occurred when he had been, wrongly, “…removed from the Applicant Board”.[16]
[15] A2.
[16] A2, para 38.
Mr Breeze identifies responsibility for the breaches as resting, primarily, with various directors of the Applicant who “did not have a background in managing PDFs”.[17]
[17] A2, para 31.
In paras 37–44 of his affidavit,[18] Mr Breeze summarises the various breaches of the PDF Act which resulted in the Applicant’s PDF registration being revoked, all of which occurred when he had wrongly (according to Mr Breeze) been excluded from management of the Applicant.
[18] A2.
He says that:
44.The company was at that time controlled by a person who did not have a full and detailed understanding of the requirements of compliance. The Board has changed and being back in my control, I am able to ensure ongoing compliance without future contraventions of the PDF Act.
The Applicant’s substantive case seems to rest heavily on the submissions that Mr Breeze is now back in control and the breaches that occurred in the years when he had been excluded, apparently from around November 2016[19] to October 2020,[20] will not occur in the future.[21]
[19] A2, para 15.
[20] A2, para 35.
[21] A2, para 44.
It does not seem to be disputed by the Applicant that the breaches which caused the Respondent to revoke the Applicant’s PDF registration occurred. The power to revoke a PDF registration under s 47 of the PDF Act arises if the Board “is satisfied that a provision of this Act has been contravened” (see [6] above). The obvious difficulty that the Applicant faces in the present case is that it seems to be conceded that the breaches occurred. The present case is not like those involving a person not currently meeting a statutory standard under relevant legislation, for instance, a tax practitioner’s registration being cancelled because he or she does not meet the registration requirements under the Tax Agent Services Act2009 (Cth), or a director being disqualified from managing a corporation under the Corporations Act 2001 (Cth) because the person is not relevantly fit and proper or adequately trained. The only criterion for the power to revoke a PDF’s registration under s 47 of the PDF Act is that it has contravened a provision of the PDF Act. Once that threshold for the exercise of the power is satisfied, there is, of course, still a discretion as to whether the PDF’s registration should be revoked.
It therefore seems that in considering the prospects of success of the Applicant’s substantive application, the only basis upon which the Applicant might be successful is if it convinces the Tribunal that a discretion not to revoke the PDF’s registration should be exercised, not because there were no breaches, but because there will not be breaches in the future.
As the Respondent noted in its submissions, while Mr Breeze refers to an intention on the part of the Applicant to “submit evidence of the new compliance framework which has been implemented” no such evidence has been put forward to date and there is no explanation as to why such evidence has not been filed. That is a fair criticism.
In considering the prospects of success of the substantive application, what I have before me are numerous, apparently undisputed, breaches of the provisions of the PDF Act over an extended period which would enliven the power to revoke the Applicant’s registration and a statement by a director that the Applicant intends to submit evidence of a new compliance framework. The Applicant bears the onus of proof in this application and it is not sufficient to assert that further evidence as to the substance of the Application will be provided. That is not evidence upon which I can form any relevant level of satisfaction.
I am not satisfied, based on the material before me, that the Applicant has reached the level of satisfaction described by Senior Member Cameron in Technical Education Australia; that “there exists facts and circumstances which would provide some basis for success”. I am also not satisfied that the Applicant has reached the level of satisfaction identified by Deputy President Redfern in Poidevin (see [19] above) that “there are facts or circumstances or points of law that may be argued at a substantive hearing which may lead to a different result”, or the level of satisfaction applied by Senior Member Olding in Birdseye and Tax Practitioners Board[22] that there is “an evidentiary foundation upon which I could be satisfied that they have a reasonably arguable case”.[23]
[22] [2020] AATA 1250.
[23] Birdseye at [105].
Accordingly, this consideration weighs against the grant of a stay.
The consequence for the Applicant of the refusal of the stay
The Applicant contends that it will be delisted from the ASX if a stay is not granted. It says that:
The Applicant’s intention is not that the stay order will operate support its reinstatement, but will suspend the Applicant’s automatic delisting from the ASX until final order of the Tribunal.[24]
[24] Applicant’s submissions, para 23.
At the hearing Mr Houweling put it as follows:
Now, we say - and in our submissions have not said any higher - other than that this will provide the opportunity for the applicant to ask that the registration status at least - or that there be an extension to the delisting process.[25]
[25] transcript at 13.
The Applicant was voluntarily suspended from trading on the ASX, at its own request, on 17 January 2020.[26] It says that it will not be able to be readmitted to trading after 16 January 2022, that being the two-year anniversary of its voluntary suspension.
[26] A2, para 66.
Mr Breeze’s affidavit states that he was advised by the ASX Listing Compliance Manager on 18 May 2021 that the Applicant’s reinstatement to the ASX is dependent on addressing the current appeal proceedings and reinstating its PDF status. He attaches correspondence from the ASX (marked DBL-12) supposedly evidencing those conditions.[27]
[27] A2, para 68.
As the Respondent pointed out, however, DBL-12 contains more than the conditions to which Mr Breeze referred in his affidavit. According to the Respondent, there is no evidence to support the proposition that a stay would in fact achieve the stated purpose because:
(e)the email at annexure DLB-12 makes clear that there are several reasons why reinstatement on the ASX of the Applicant is not assured, including uncertainty around the extension of the PEP 11 which is held by Advent Energy Ltd; and
(f)even if a stay were granted, that would not enable the Applicant to resume trading on the ASX.
PEP 11 is over an area off the coast of New South Wales. Mr Breeze was cross-examined on the status of PEP 11. He agreed that, while the fee for the permit had recently been paid by an associated company, the status of PEP 11 was still unclear. The following exchange took place:
MS THOMPSON: And in terms of where the licence renewal is at this point - putting aside the fees having been paid, and the effect of it continuing whilst the decision is being made - what the Minister said on 12 February 2021 remains the case, isn’t it, that no decision has yet been made?
MR BREEZE: Correct.
MS THOMPSON: Okay. And you don’t know when that decision is going to be made, do you?
MR BREEZE: No, I don’t. But it could be made tomorrow.[28]
[28] transcript at 27.
On the evidence it appears that the Applicant’s reinstatement to official quotation on the ASX is dependent on more than a stay of the decision or even the final resolution of the substantive application. Mr Breeze was cross-examined on his discussions with the ASX on that issue:
MS THOMPSON: Okay. You haven’t approached the ASX to ask it if a stay is granted it will give MEC the opportunity to relist, have you?
MR BREEZE: We have in fact over - or rather the company - has over a period - - -
MS THOMPSON: No, I’m asking about in the last month?
MR BREEZE: No.
MS THOMPSON: Thank you. So, you don’t know what the ASX’s attitude to a stay is, do you?
MR BREEZE: No, but I understand - - -
MS THOMPSON: Well, don’t give us your speculation, Mr Breeze. If you do know, then by all means tell us. But if what you’re going to tell us is your understanding of what they might do, that won’t assist the [T]ribunal. So you haven’t had a conversation, have you?
MR BREEZE: No.
MS THOMPSON: And you haven’t written them a letter?
MR BREEZE: No.
MS THOMPSON: And there’s no guarantee from the ASX that they will look at reinstatement if a stay is granted, is there?
MR BREEZE: In fact, the two points that are set out - -
MS THOMPSON: No, can you just answer my question. There is no guarantee, is there, that the ASX will relist MEC Resources for trading if a stay is granted, is there?
MR BREEZE: Yes.
MS THOMPSON: There is? There’s a guarantee?
MR BREEZE: Not a guarantee, but I expect that that will be achieved.
MS THOMPSON: Right. But you haven’t spoken to them about it?
MR BREEZE: My answer to you is based upon the interchange of correspondence between multiple sets of lawyers and the ASX.
MS THOMPSON: None of which is in evidence, is it?
MR BREEZE: No.
MS THOMPSON: So you’re giving us your view of correspondence that you haven’t given to the tribunal?
MR BREEZE: That’s correct.[29]
[29] transcript at 26.
The Respondent’s solicitors had also asked the Applicant’s solicitors in September 2021[30] whether the Applicant had made any approach to the ASX for an indication of the impact that a stay would have on the ASX proceeding, or not proceeding, to delist the Applicant. That enquiry by the Respondent’s lawyers remained unanswered until, in effect, the cross-examination of Mr Breeze at the hearing as set out above. In the end we are left to speculate as to what, if any, impact the grant of a stay would have on the ASX’s attitude to delisting the Applicant.
[30] Letter from Clayton Utz to Cornerstone Legal dated 22 September 2021.
I accept there may be financial consequences to the Applicant and to those who have invested through the Applicant if the Applicant were to be delisted, however, on the evidence before me, I am not satisfied that a stay would have a material impact on whether the Applicant would be delisted or readmitted to trading after 16 January 2022. Other than Mr Breeze’s speculation as to the effect that a stay might have on the ASX’s attitude to the automatic delisting of the Applicant, there was no evidence to establish that a stay would have any impact of the ASX’s actions.
This consideration does not weigh in favour of the grant of a stay.
The public interest
The Respondent submits that the public interest in refusing the application for a stay lies in the maintenance of appropriate standards of compliance with the scheme which the PDF Act puts in place. It says that it has the responsibility to ensure the proper functioning of the PDF scheme. It is a scheme in which taxation concessions are afforded to registered PDFs, and controls and safeguards are in place to ensure that those concessions are not abused. The preservation of the general community’s confidence in the scheme is a fundamental concern in the exercise of the jurisdiction to stay, as it is in professional disciplinary schemes: GJ Brown & Co Pty Ltd and Tax Practitioners Board[31] at [82] and the cases cited therein.
[31] (2016) 103 ATR 924; [2016] AATA 740.
According to the Respondent, the Applicant has been found to be in breach of its obligations under the PDF Act and should not receive the benefit of a stay in circumstances where that stay will serve no practical purpose.
The Applicant argues that the grant of a stay would not risk the public interest and does not prejudice the Respondent because, notwithstanding a stay, the Applicant would be unable to make and hold further investments in its capacity as a pooled development fund until such time as the substantive decision is made by the Tribunal. The grant of a stay would merely ensure that the Applicant “stays alive” to a point in time where a final decision is made and can be effected.
I have difficulty accepting the Applicant’s argument as to the effect of a stay. The decision which is sought to be stayed is the Respondent’s decision to revoke the Applicant’s PDF registration under s 47 of the PDF Act. The effect of a stay would be to restore the Applicant’s PDF registration. In closing Mr Houweling submitted that while the Applicant remains suspended from the ASX, it, in effect, cannot trade so the public interest is protected. He put it as follows:
… until the company is re-registered on the stock exchange, able to trade, and re-listed with the PDF status, the public interest is not such that it’s going to be, in effect, affected.[32]
[32] transcript at 33.
While that may be the practical result of a stay, if a stay were granted then the PDF status of the Applicant would be restored, enabling it (in theory at least) to raise funds from investors under the scheme of the PDF Act. Ms Thompson noted:
There is no evidence at all that there would be difficulty in respect of raising funds from private equity if the company was delisted and became an unlisted entity.[33]
[33] transcript at 35.
Ms Thompson pointed out that:
Mr Breeze gave evidence that there was difficulty with obtaining finance because of past conduct of breaches on the impact of the survival of the company. Now, when cross-examined about that point, ultimately Mr Breeze accepted that there is no current problem with raising funds because of the behaviour of Ms [Ambrosini] and the other people whose conduct was impugned. That issue has gone away. So it is not current.[34]
[34] transcript at 35.
While the granting of a stay could, in theory, have repercussions to the public, I find that a stay is unlikely to result in the Applicant raising or seeking to raise further funds under the PDF scheme. In balancing the factors for and against the grant of a stay, I find this consideration to be neutral.
The consequences for the Respondent in carrying out its functions
The Applicant argues that the Respondent has effectively carried out its function within the ambit of the PDF Act and the current appeal process does not impact on the ability of the Respondent to prosecute its functions under the PDF Act.
The Applicant submits that the granting of a stay has no bearing on the Applicant’s PDF registration status, which is a matter that can ultimately only be decided by the Tribunal.[35] I disagree with that submission. For the reasons set out in [48] above, the effect of a stay would be to restore the Applicant’s PDF registration. The Applicant argues that its ability to conduct business is tied to the ASX listing, because its ability to raise capital is dependent on it being listed on the ASX. Accordingly, even if a stay is granted it will not be carrying on business as usual in the interim period.
[35] Applicant’s SFIC, para 41.
The Respondent argues generally (in conjunction with the public interest consideration) that the Respondent has a responsibility to ensure the proper functioning of the PDF scheme.
The Respondent did not address this issue specifically in its written submissions, however, I take the submissions made by the Respondent in relation to the public interest as covering this consideration as well. Other than the general potential impact on the public perception of the effectiveness of the Respondent’s overseeing of the PDF scheme, there was no identification by the Respondent of how the Respondent’s ability to carry out its functions would be adversely impacted by a stay.
I find that this consideration does not weigh against the grant of a stay.
Whether the applications for review would be rendered nugatory if stays are not granted
The relevant test is that identified by President Downes J in Scott, at [12], namely;
... that the review application, if successful, would be rendered less useful, potentially, than if a stay was granted. However, having said that, it seems to me that it certainly would not be rendered nugatory or pointless and given the length of time that has already passed and the short period of time before the application will be heard, it does not seem to me that the prejudice that will be suffered by failing to grant a stay, would be substantial.
The Applicant’s written submissions were as follows:
A stay order would, put at the least, assist in securing the effectiveness of the hearing in this matter. The function of the stay would form the basis on which the Applicant will seek confirmation from the ASX that the delisting will not occur until after the substantive application is decided. As it stands, the Applicant will be delisted automatically without further submission to the ASX in respect of the pending appeal.[36]
[36] Applicant’s submissions, para 30.
The Respondent accepted that delisting from the ASX may have serious consequence for the Applicant and its shareholders, however, submitted that a stay will not avoid or alleviate those consequences.
As noted at [33] above, the Applicant puts its case on the basis that a stay will provide the opportunity for the Applicant to seek some extension to the ASX delisting process. For the reason set out above, I do not accept that the Applicant has even established that that would be the case. The substantive hearing is listed for January 2022. I am not satisfied that a refusal to grant a stay would have any impact on the effectiveness of the hearing and the determination of the substantive application. Even if the delisting of the Applicant from the ASX were to proceed in January 2022, and there was no evidence presented by the Applicant that the grant of a stay would have any material impact on whether or not that occurred, the Applicant would continue to exist and, if successful in the substantive application, continue to be able to carry on business as a PDF. The financial consequences and the impact on the Applicant’s business of it being delisted, even if that were to occur, are not matters that would defeat the effectiveness of the hearing.
It is not necessary or appropriate in order to secure the effectiveness of the substantive hearing that a stay be granted. I am satisfied that if a stay is not granted the Applicant will proceed with the substantive application to have its registration as PDF entity restored and that a decision in the Applicant’s favour in that substantive application would not be rendered nugatory by a stay not being granted.
This consideration weighs against the grant of a stay.
CONCLUSION
Having considered all of the factors weighing in favour of the grant of the stay and those weighing against the grant of the stay, I find that the factors weighing against the grant of the stay outweigh those in favour.
DECISION
The Applicant’s request for a stay of the operation or implementation of the decision is refused.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
........................................................................
Associate
Dated: 3 November 2021
Date of hearing: 18 October 2021 Counsel for the Applicant: Mr T Houweling Solicitors for the Applicant: Cornerstone Legal Counsel for the Respondent: Ms C Thompson Solicitors for the Respondent: Clayton Utz
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