Oldfields Holdings Limited Re - [2009] NSWSC 1220

CITATION: Oldfields Holdings Limited Re [2009] NSWSC 1220

HEARING DATE(S): 10/11/09

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Einstein J

EX TEMPORE JUDGMENT DATE: 12 November 2009

DECISION: Remedial orders made as sought- see paragraph 35

CATCHWORDS: Corporations - Rights Issue - Application order under s 1322 (4) of the Corporations Act 2001 (Cth) extending time for a company to give notice to Australian Securities Exchange Ltd under s 708AA (2) (f) of the Act - Whether failure to lodge a cleansing notice as required by the Act was due to inadvertence - Whether substantial injustice to any party

LEGISLATION CITED: Corporations Act 2001 (Cth)

CATEGORY: Principal judgment

CASES CITED: Chalice Gold Mines Ltd, Re [2009] FCA 1236
Chameleon Mining NL, Re [2009] NSWSC 660
Charter Hall, Re [2007] FCA 1316

TEXTS CITED: Ford’s Principles of Corporation Law, on line service 68

PARTIES: Oldfields Holdings Limited (Plaintiff)

FILE NUMBER(S): SC 5282/09

COUNSEL: Mr J Darams (Plaintiff)
Ex parte

SOLICITORS: Eakin McCaffery Cox (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

Einstein J

Tuesday 10 December 2009 ex tempore
Revised 12 December 2009

5282/09 Oldfields Holdings Limited

Judgment

Ex parte

Application seeking orders in relation to an extension of time

1 There is before the court an application made pursuant to subsection 1322(4)(d) of the Corporations Act 2001 (Cth) [the Act] seeking orders in relation to an extension of time to give notice to Australian Securities Exchange Limited [the ASX] under subsection 708AA(2)(f) of the Act.

2 The application is supported by four affidavits:

the affidavit of Mr Gary Jeffrey Guild;

the affidavit of Mr Anthony Mankarios;

the affidavit of Mr Mark Geoffrey Dobell;

the further affidavit of Mr Mark Geoffrey Dobell.

Background

3 The background to the making of the application concerns a rights issue by Oldfields Holdings Limited [Oldfields], the relevant timetable being as follows:

6^th October 2009	Lodging Appendix 3B with ASX
12^th October 2009	Notice to Security Holders
13^th October 2009	“Ex” Date
19^th October 2009	Record Date
22^nd October 2009	Acceptance Form mailed
6^th November 2009	Acceptances close at 5pm
9^th November 2009	Securities quoted on a deferred settlement basis
11^th November 2009	Notify ASX of under subscriptions
16^th November 2009	Despatch Date Confirm Appendix 3B
17^th November 2009	Resume Normal Trading

4 The plaintiff is a publicly listed company. The plaintiff’s application arises out of circumstances where it has embarked upon a capital-raising by way of a 1 for 2 rights issue to each of its members. The plaintiff has sought to raise additional working capital in order to meet prospective orders for its goods from overseas clients. The company has received approximately $250,000 in relation to the rights issue.

5 The capital-raising is regulated by Chapter 6D of the Act. Pursuant to section 706 of the Act, the offer by the plaintiff required disclosure under that part of the Act unless, relevantly in the current circumstances, section 708AA of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oldfields Holdings Limited Re

Details

AGLC: Oldfields Holdings Limited Re [2009] NSWSC 1220
Case: [2009] NSWSC 1220
Decision Date: 12 November 2009

CaseChat Overview and Summary

Oldfields Holdings Limited brought an application to the Federal Court of Australia seeking an order under section 1322(4) of the Corporations Act 2001 (Cth) to extend the time for the company to give notice to the Australian Securities Exchange Ltd under section 708AA(2)(f) of the Act. The company had failed to lodge a cleansing notice as required by the Act, and the matter was before the Court to determine whether the failure was due to inadvertence and whether it would cause substantial injustice to any party. The Court considered the circumstances of the case and the relevant provisions of the Act in deciding the application.

The legal issues before the Court were whether the failure to lodge the cleansing notice was inadvertent and whether any party would suffer substantial injustice if the time to give the notice was extended. The Court examined the evidence provided by the company and considered the impact of the delay on the company and its shareholders. The Court also considered the purposes of the provisions of the Act relevant to the notice and the need to balance the interests of the company and its shareholders.

The Court found that the failure to lodge the cleansing notice was inadvertent and that there was no substantial injustice to any party if the time to give the notice was extended. The Court noted that the delay had not caused any prejudice to the company or its shareholders and that the purposes of the relevant provisions of the Act would not be frustrated by the extension of time. The Court therefore made an order extending the time for the company to give the notice.

The Court ordered that Oldfields Holdings Limited be given an extension of time to give the cleansing notice to the Australian Securities Exchange Ltd under section 708AA(2)(f) of the Corporations Act 2001 (Cth). The order was made on the basis that the failure to lodge the notice was inadvertent and that there would be no substantial injustice to any party if the time was extended. The company was required to give the notice within 14 days of the order being made.

Orders