Re Astral Resources Nl

The plaintiff, Astral Resources NL, brought an urgent application before the Supreme Court of Western Australia, seeking relief under s 1322(4) of the Corporations Act 2001 (Cth) for a failure to issue a cleansing notice in accordance with s 708A(5) and s 708A(6) during a share issue on 8 May 2023. The company secretary, Brendon Gregory Morton, admitted to inadvertently forgetting to issue the required notice, leading to the irregularity being identified two months later. Upon discovery, the plaintiff swiftly took corrective actions, including seeking a trading halt, lodging a cleansing prospectus, and notifying ASIC. The plaintiff sought a deeming order to validate the share issue and declarations that any subsequent sales of the shares were not invalid. The court was required to decide whether the relief was appropriate under s 1322(4), considering factors such as the act or matter being in relation to an 'act, matter or thing', one of the criteria in s 1322(6)(a) being satisfied, and no substantial injustice being caused.

The court found that the plaintiff had standing to seek relief and that the requirements of s 1322(4)(a) and s 1322(6)(a) were satisfied. The court accepted that the failure was inadvertent and that the plaintiff acted promptly to remedy the situation. The court was also satisfied that no substantial injustice had been or was likely to be caused to any person. The court considered that making the orders was in the interests of the shareholders and would ensure the free trading of shares without infringing statutory requirements. The court exercised its residual discretion and granted the relief sought by the plaintiff. The orders included a deeming order to validate the share issue and declarations that any subsequent sales of the shares were not invalid. The court also made an ancillary order permitting any interested party who might suffer substantial injustice to apply to vary or dissolve the s 1322(4) order.