Primary Securities Ltd v Aurora Funds Management Ltd - [2020] NSWCA 230

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Primary Securities Limited v Aurora Funds Management Limited [2020] NSWCA 230
Hearing dates: 13 and 14 February 2020
Decision date: 23 September 2020
Before: Bell P at [1];
Leeming JA at [2];
White JA at [3]
Decision:
1. Refuse the appellant leave to file a further amended notice of appeal.
2. Order that the appeal be dismissed with costs.

Catchwords:
CORPORATIONS — Meeting of members of listed scheme called by members —– Requirement of s 252D Corporations Act that a meeting be called “in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity” – whether notice of meeting required to identify members calling the meeting
CORPORATIONS — Meeting of members — Notice — whether proper notice given to directors and auditor of incumbent responsible entity – where some unitholders not given proper notice – whether defects substantive or procedural irregularities
CORPORATIONS — Meeting of members — Effect of defect or irregularity ––– whether procedural irregularity causing substantial injustice – requirements for the making of orders under ss 1322(2) and 1322(4) Corporations Act
CORPORATIONS — Misleading or deceptive conduct — whether explanatory memorandum accompanying notice of meeting misleading by omission – whether reasonable expectation to disclose matters of suspicion

Legislation Cited:
Acts Interpretation Act 1901 (Cth), ss 28A, 29
Australian Consumer Law, s 18
Australian Securities and Investments Commission Act 2001 (Cth), s 12DA
Corporations Act 2001 (Cth), ss 109X, 173, 249D, 252D, 252F, 604, 606, 607, 657A, 672A, 1041H, 1322
Evidence Act 1995 (NSW), s 160(1)
Corporations Regulation 2001 (Cth), reg 2C.1.03

Cases Cited:
Beck v L W Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76; 87 ACSR 672
Bisan v Cellante [2002] VSC 430; 43 ACSR 322
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
In the matter of Aurora Funds Management Limited [2019] NSWSC 626
In the matter of Aurora Funds Management Limited [2019] NSWSC 626
Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638
Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193
King v Fulton (1876) 2 VLR (Eq) 100
Nenna v Australian Securities and Investments Commission (2011) 198 FCR 32; [2011] FCA 1193
Re Broadway Motors Holdings Pty Ltd (in liq) (1986) 6 NSWLR 45
Re Carlton Football Club Limited [2004] VSC 379; 51 ACSR 29
Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477
Re PW Saddington & Sons Pty Ltd (1990) 19 NSWLR 674
Re Testro Bros Consolidated Ltd; Ex parte Attorney-General [1969] VR 199
Westralia Property Management Ltd v Davison [2006] WASCA 203

Texts Cited:
Horsley’s Meetings, Procedure, Law and Practice (7th ed., LexisNexis, 2015)
Shackleton on the Law and Practice of Meetings (14th ed., Sweet & Maxwell, 2017)

Category: Principal judgment
Parties: Primary Securities Limited (Appellant)
Aurora Funds…

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.

Keep reading for free

Create a free CaseChat account to read Primary Securities Ltd v Aurora Funds Management Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCA 230
Decision Date: 23 September 2020

CaseChat Overview and Summary

Primary Securities Ltd (the appellant) sought to appeal a decision of the primary judge concerning a meeting of members of a listed scheme. The dispute arose from a notice of meeting called by members of the scheme, and the appellant contended that the notice was defective. Aurora Funds Management Ltd was the respondent. The appeal was heard by Bell P, Leeming, and White JJA of the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal included whether the notice of the members' meeting was required to identify the members who called the meeting, consistent with section 252D of the *Corporations Act 2001* (Cth). Further, the court had to determine whether proper notice of the meeting had been given to the directors and auditor of the incumbent responsible entity, and whether any defects in notice to some unitholders constituted substantive or procedural irregularities. The court was also required to consider the effect of any such defects or irregularities, specifically whether they caused substantial injustice, in the context of making orders under sections 1322(2) and 1322(4) of the *Corporations Act*. Finally, the court considered whether an explanatory memorandum accompanying the notice of meeting was misleading or deceptive by omission, and whether there was a reasonable expectation to disclose matters of suspicion.

The Court of Appeal reasoned that section 252D of the *Corporations Act* did not mandate the identification of members calling a meeting. The court found that while there were procedural irregularities in the notice provided to some unitholders, these did not cause substantial injustice, and therefore did not warrant intervention under section 1322 of the *Corporations Act*. The court also concluded that the explanatory memorandum was not misleading or deceptive by omission, as there was no reasonable expectation to disclose matters of mere suspicion.

The Court of Appeal ordered that the appellant be refused leave to file a further amended notice of appeal and that the appeal be dismissed with costs.

Orders

Orders of the court

1. Refuse the appellant leave to file a further amended notice of appeal.

2. Order that the appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Primary Securities Limited v Aurora Funds Management Limited [2020] NSWCA 230
Hearing dates:	13 and 14 February 2020
Decision date:	23 September 2020
Before:	Bell P at [1]; Leeming JA at [2]; White JA at [3]
Decision:	1. Refuse the appellant leave to file a further amended notice of appeal. 2. Order that the appeal be dismissed with costs.
Catchwords:	CORPORATIONS — Meeting of members of listed scheme called by members —– Requirement of s 252D Corporations Act that a meeting be called “in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity” – whether notice of meeting required to identify members calling the meeting CORPORATIONS — Meeting of members — Notice — whether proper notice given to directors and auditor of incumbent responsible entity – where some unitholders not given proper notice – whether defects substantive or procedural irregularities CORPORATIONS — Meeting of members — Effect of defect or irregularity ––– whether procedural irregularity causing substantial injustice – requirements for the making of orders under ss 1322(2) and 1322(4) Corporations Act CORPORATIONS — Misleading or deceptive conduct — whether explanatory memorandum accompanying notice of meeting misleading by omission – whether reasonable expectation to disclose matters of suspicion
Legislation Cited:	Acts Interpretation Act 1901 (Cth), ss 28A, 29 Australian Consumer Law, s 18 Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Corporations Act 2001 (Cth), ss 109X, 173, 249D, 252D, 252F, 604, 606, 607, 657A, 672A, 1041H, 1322 Evidence Act 1995 (NSW), s 160(1) Corporations Regulation 2001 (Cth), reg 2C.1.03
Cases Cited:	Beck v L W Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76; 87 ACSR 672 Bisan v Cellante [2002] VSC 430; 43 ACSR 322 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 In the matter of Aurora Funds Management Limited [2019] NSWSC 626 In the matter of Aurora Funds Management Limited [2019] NSWSC 626 Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638 Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 King v Fulton (1876) 2 VLR (Eq) 100 Nenna v Australian Securities and Investments Commission (2011) 198 FCR 32; [2011] FCA 1193 Re Broadway Motors Holdings Pty Ltd (in liq) (1986) 6 NSWLR 45 Re Carlton Football Club Limited [2004] VSC 379; 51 ACSR 29 Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477 Re PW Saddington & Sons Pty Ltd (1990) 19 NSWLR 674 Re Testro Bros Consolidated Ltd; Ex parte Attorney-General [1969] VR 199 Westralia Property Management Ltd v Davison [2006] WASCA 203
Texts Cited:	Horsley’s Meetings, Procedure, Law and Practice (7th ed., LexisNexis, 2015) Shackleton on the Law and Practice of Meetings (14th ed., Sweet & Maxwell, 2017)
Category:	Principal judgment
Parties:	Primary Securities Limited (Appellant) Aurora Funds…