Re ASRA Minerals Limited - [2024] WASC 425

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE ASRA MINERALS LIMITED; EX PARTE ASRA MINERALS LIMITED [2024] WASC 425
CORAM:   HILL J
HEARD:   22 OCTOBER 2024
DELIVERED          :   22 OCTOBER 2024
PUBLISHED           :   15 NOVEMBER 2024
FILE NO/S:   COR 159 of 2024
MATTER:   IN THE MATTER OF ASRA MINERALS LIMITED
EX PARTE

ASRA MINERALS LIMITED
Plaintiff

Catchwords:

Corporations - Application for orders under s 1322 of Corporations Act 2001 (Cth) - Failure of company to have shareholder nominate auditor prior to annual general meeting - Where immediate steps taken to rectify irregularity once identified - Where no substantial injustice caused by proposed orders - Where no blatant or flagrant disregard of obligations

Corporations - Application for orders under s 1322 of Corporations Act 2001 (Cth) - Application for declaratory relief to validate trading in shares issued without valid cleansing notices - Where immediate steps taken to rectify irregularity - Where no substantial injustice caused by proposed orders - Where no blatant or flagrant disregard of obligations

Legislation:

Corporations Act 2001 (Cth) s 302, s 320, s 327B, s 327C, s 328B, s 707, s 708A, s 1322

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

B J Tomasi

Solicitors:

Plaintiff

Hamilton Locke

Cases referred to in decision:

Re Bellevue Gold Ltd [2021] WASC 80
Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22
Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings, and to correct matters of grammar and expression.)

On 17 October 2024, the plaintiff, Asra Minerals Limited (Company), filed an originating process seeking orders under s 1322(4) of the Corporations Act2001 (Cth) (Act) relating to contraventions in the appointment process of its auditor and, as a consequence, its compliance with the auditing, financial reporting and lodgment obligations under pt 2M.3 of the Act. These contraventions occurred as a result of a failure to have a shareholder nominate RSM Australia Partners (RSM) as auditor or have RSM's appointment as its auditor approved at its 2024 annual general meeting (AGM), which was held on 31 May 2024.
These contraventions have had a secondary impact on the Company; as it has raised the issue as to whether cleansing notices issued by the Company between 6 June 2024 and 5 September 2024 are also defective. This issue arises because these cleansing notices state that as at the date of their issue, the Company is in compliance with the provisions of ch 2M in the Act. Given this uncertainty, the Company has also applied for orders declaring that these notices were effective when given, and that any offer for sale or sale of the shares that have been undertaken in respect of their share issues are not invalid.

Factual…

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 Re ASRA Minerals Limited

Details

AGLC: Re ASRA Minerals Limited [2024] WASC 425
Case: [2024] WASC 425
Decision Date: 15 NOVEMBER 2024

CaseChat Overview and Summary

The matter before the Court was an application by ASRA Minerals Limited (ASRA) for orders under section 1322 of the Corporations Act 2001 (Cth), seeking relief from a contravention of the Act in relation to the nomination of an auditor and the issuance of valid cleansing notices for shares. The Court was required to determine whether the irregularities identified warranted relief under the section, considering the prompt actions taken by ASRA to rectify the issues and the absence of substantial injustice or blatant disregard of obligations.

The primary legal issues before the Court were whether the company's failure to have a shareholder nominate an auditor prior to the annual general meeting constituted a contravention warranting relief, and whether the issuance of shares without valid cleansing notices required rectification. The Court considered the circumstances surrounding the irregularities, including the immediacy of the steps taken by ASRA to correct the issues and the lack of any substantial injustice or blatant disregard of the company's obligations under the Corporations Act.

The Court found that the irregularities identified did warrant relief under section 1322 of the Corporations Act. The Court noted that ASRA had taken immediate steps to rectify the issues once they were identified, and there was no evidence of substantial injustice caused by the proposed orders. Furthermore, the Court determined that there was no blatant or flagrant disregard of the company's obligations under the Act. The Court concluded that the prompt actions taken by ASRA in addressing the irregularities were sufficient to warrant relief, and that the proposed orders would not cause substantial injustice.

The Court made orders under section 1322 of the Corporations Act to validate the trading in shares issued without valid cleansing notices and to validate the appointment of the auditor by the company. The Court also made orders to declare that ASRA had complied with the requirements of the Act, notwithstanding the initial irregularities. These orders provided the necessary relief to ASRA, allowing it to proceed with its operations without the hindrance of the initial irregularities.

Orders