Re Barrick Middle East Pty Limited

Barrick Middle East Pty Limited (Barrick) applied to the Court for an extension of time to comply with certain financial reporting obligations, and for relief from potential civil liability for failure to comply with those obligations. The application was made pursuant to sections 1322(4)(d) and 1322(4)(c) of the Corporations Act 2001 (Cth). The background to the application was that Barrick had received a dividend payment from its holding company in a financial year in which it was a small proprietary company. In the next financial year, Barrick became a large proprietary company, which triggered financial reporting obligations under the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (Instrument). Barrick had failed to comply with these obligations within the required timeframe.

The primary legal issue before the Court was whether Barrick was entitled to an extension of time to comply with the financial reporting obligations, and whether it should be relieved from civil liability for its failure to comply. The Court noted that the purpose of the Instrument was to enable closed groups of companies to prepare and lodge financial statements prepared on a consolidated basis. The Court also noted that section 6 of the Instrument set out mandatory conditions that had to be satisfied before the relief in section 5 was available. In particular, the Court noted that one of the conditions was that the company must not have been a small proprietary company for the relevant financial year. The Court considered whether Barrick satisfied this condition, and whether it was entitled to the relief under the Instrument.

The Court found that Barrick had satisfied the condition in section 6(a)(iii) of the Instrument, as it was a small proprietary company to which paragraph 292(2)(b) of the Corporations Act 2001 (Cth) applied in relation to the relevant financial year. The Court also found that Barrick was entitled to the relief under section 5 of the Instrument, as all of the other conditions in section 6 of the Instrument were satisfied. The Court noted that Barrick had not been a disclosing entity, a borrower in relation to debentures, a guarantor of such a borrower, or a financial services licensee during the relevant financial year. The Court also noted that there was a holding entity in relation to Barrick at the end of the relevant financial year, and that the holding entity was not a small proprietary company for the relevant holding entity financial year. The Court concluded that Barrick was entitled to an extension of time to comply with the financial reporting obligations, and that it should be relieved from civil liability for its failure to comply.

The Court ordered that Barrick be granted an extension of time to comply with the financial reporting obligations, and that it be relieved from civil liability for its failure to comply. The Court also ordered that Barrick lodge a notice with ASIC using ASIC Form 389, containing a statement that it had taken advantage of relief under the Instrument together with the identity of the holding entity.