FEDERAL COURT OF AUSTRALIA
Austsino Resources Group Limited, in the matter of Austsino Resources Group Limited [2018] FCA 883
File number: WAD 105 of 2018 Judge: MCKERRACHER J Date of judgment: 13 June 2018 Catchwords: CORPORATIONS – validation of share issue – where issued shares not admitted for quotation within the time prescribed under s 723(3)(b) and s 724(1)(b)(ii) of the Corporations Act 2001 (Cth) – application under s 1322(4) of the Corporations Act by the issuer of securities for an extension of that period – where there is no reason for the Court not to exercise its discretion and grant relief – application granted. Legislation: Corporations Act 2001 (Cth) ss 723(3)(b), 723(3)(3)(c), 723(3)(3)(d), 724(1)(b)(ii), 741, 1322(4), 1322(4)(a), 1322(4)(c), 1322(4)(d), 1322(5), 1322(6), 1322(6)(a), 1322(6)(a)(i), 1322(6)(a)(ii), 1322(6)(a)(iii), 1322(6)(c) Cases cited: Azure Minerals Limited, in the matter of Azure Minerals Limited [2013] FCA 63
Re G8 Communications Ltd (2016) 112 ACSR 22
Re Golden Gate Petroleum Ltd (2004) 50 ACSR 659
Re Laserbond Ltd (2007) 25 ACLC 1658
Re Nusep Ltd (2007) 62 ACSR 301
Re Solco Ltd (2015) 106 ACSR 591
Taruga Gold Limited, in the matter of Taruga Gold Limited [2015] FCA 892
Re Tony Barlow Australia Ltd (2005) 53 ACSR 1
Re Wave Capital Ltd (2003) 47 ACSR 418
Date of hearing: 28 March 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 24 Counsel for the Plaintiff: Mr AJ Papamatheos Solicitor for the Plaintiff: Christensen Partners ORDERS
WAD 105 of 2018 IN THE MATTER OF AUSTSINO RESOURCES GROUP LIMITED ACN 009 076 242
BETWEEN: AUSTSINO RESOURCES GROUP LIMITED ACN 009 076 242
Plaintiff
JUDGE:
MCKERRACHER J
DATE OF ORDER:
28 MARCH 2018
THE COURT ORDERS THAT:
1.Pursuant to section 1322(4)(d) of the Corporations Act 2001 (Cth), the period set out in sections 723(3)(b) and 724(1)(b)(ii) of the Act for the admission to quotation by ASX of securities of the Plaintiff to be issued pursuant to the Prospectus of 20 December 2017 (as replaced by the Prospectus of 17 January 2018), be extended to the date which is 5 business days after the making of this order.
2.The Plaintiff do forthwith:
(a)lodge a copy of these orders with ASIC; and
(b)make an announcement to the ASX disclosing the terms of these orders.
3.The Plaintiff and all other interested or affected parties have liberty to apply to vary these orders upon first giving 72 hours prior written notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
INTRODUCTION
These are reasons for the orders made on 28 March 2018.
Austsino Resources Group Limited applies for orders under s 1322(4)(a) and s 1322(4)(d) of the Corporations Act 2001 (Cth) (CA) to extend the period of 3 months referred to in s 723(3)(b) and s 724(1)(b)(ii) CA in which securities issued pursuant to a prospectus lodged…
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- AGLC
- Re Austsino Resources Group Ltd [2018] FCA 883
- Case
- [2018] FCA 883
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the prescribed conditions for granting an extension under section 1322(4) of the Corporations Act were met, and if so, whether the court should exercise its discretion to grant relief. The court considered the circumstances surrounding the delay, Austsino's promptness in seeking the extension, and whether the extension would unfairly prejudice any party. The court also noted the importance of ensuring that the Corporations Act is not circumvented in a way that could lead to unfair outcomes for other parties.
The court found that Austsino had acted promptly and properly upon being alerted by the Australian Securities Exchange (ASX) about the expiration of the three-month period. The court considered that the circumstances warranted the granting of the relief sought, as there was no reason for the court not to exercise its discretion. The court acknowledged that section 1322 of the Corporations Act allows the court to excuse failures that would otherwise invalidate share issues, provided certain conditions are met. The court concluded that the circumstances of this case justified the making of the curative orders sought by Austsino.
The court granted the application for an extension, setting the new deadline for the admission to quotation of securities by the ASX as five business days after the making of the order. Austsino was also required to lodge a copy of the orders with ASIC and make an announcement to the ASX disclosing the terms of the orders. The court further provided that any interested or affected party had the liberty to apply to vary these orders, provided they gave 72 hours prior written notice. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. Pursuant to section 1322(4)(d) of the Corporations Act 2001 (Cth), the period set out in sections 723(3)(b) and 724(1)(b)(ii) of the Act for the admission to quotation by ASX of securities of the Plaintiff to be issued pursuant to the Prospectus of 20 December 2017 (as replaced by the Prospectus of 17 January 2018), be extended to the date which is 5 business days after the making of this order.
2. The Plaintiff do forthwith:
(a) lodge a copy of these orders with ASIC; and
(b) make an announcement to the ASX disclosing the terms of these orders.
3. The Plaintiff and all other interested or affected parties have liberty to apply to vary these orders upon first giving 72 hours prior written notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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