Primary Securities Ltd v Aurora Funds Management Ltd

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.