Re Beadell Resources Ltd
[2013] FCA 13
•15 January 2013
FEDERAL COURT OF AUSTRALIA
Beadell Resources Limited, in the matter of Beadell Resources Limited [2013] FCA 13
Citation: Beadell Resources Limited, in the matter of Beadell Resources Limited [2013] FCA 13 Parties: BEADELL RESOURCES LIMITED (ACN 125 222 291) File number(s): WAD 330 of 2012 Judges: MCKERRACHER J Date of judgment: 15 January 2013 Catchwords: CORPORATIONS – application for order under s 1322(4) of the Corporations Act 2001 (Cth) extending time for issuing a cleansing notice pursuant to s 708A(5)(e) in respect of share issues – inadvertent non-compliance Legislation: Corporations Act 2001 (Cth) ss 708A(5)(e), 1322(4) Cases cited: Sprint Energy Limited, in the matter of Sprint Energy Limited [2012] FCA 1354 Date of hearing: 11 December 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: Ms V Stewart Solicitor for the Applicant: Middletons
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 330 of 2012
IN THE MATTER OF BEADELL RESOURCES LIMITED (ACN 125 222 291)
BETWEEN: BEADELL RESOURCES LIMITED (ACN 125 222 291)
Applicant
JUDGE:
MCKERRACHER J
DATE OF ORDER:
11 DECEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.In respect of the 5,000,000 fully paid ordinary shares in the Applicant issued on 29 August 2012 to Macquarie Capital Group Limited ACN 096 705 109 (MCGL) (the August Securities) the period of 5 business days referred to in section 708A(6) of the Corporations Act 2001 (Cth) (Act) be extended to the second business day after the day on which these orders are entered.
2.In respect of the 5,000,000 fully paid ordinary shares in the Applicant issued on 19 October 2012 to Macquarie Bank Limited ACN 008 583 542 (MBL) (the October Securities) the period of 5 business days referred to in section 708A(6) of the Act be extended to the second business day after the day on which these orders are entered.
3.The notice under section 708A(5)(e) of the Act given to ASX Limited ACN 008 624 691 (ASX) in respect of the August Securities within the period provided for in Order 1 be deemed to take effect as if it had been given to ASX within 5 business days of 29 August 2012.
4.The notice under section 708A(5)(e) of the Act given to ASX in respect of the October Securities within the period provided for in Order 2 be deemed to take effect as if it had been given to ASX within 5 business days of 19 October 2012.
5.Confidential annexures GMB1, GMB2, GMB7 and GMB8 to the affidavit of Gregory Michael Barrett sworn 22 November 2012 (confidential annexures) be kept confidential and kept in sealed envelopes on the Court file.
6.Access to the confidential annexures on the Court file be restricted to the Judges of the Federal Court of Australia (Western Australian District Registry) and their Associates.
7.These orders be entered forthwith.
8.For a period of 28 days from the date of the publication by the Applicant of these Orders on the Applicant’s website, any person who claims to have suffered substantial injustice or is likely to suffer substantial injustice by the making of any or all of the Orders herein has liberty to apply to vary or to discharge them.
9.A sealed copy of these orders be served on the Australian Securities and Investments Commission, ASX, MCGL and MBL within 2 business days of the date of these orders. A copy of these orders also be placed on the website of the Applicant as soon as practicable and remain there for at least 28 days.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 330 of 2012
IN THE MATTER OF BEADELL RESOURCES LIMITED (ACN 125 222 291)
BETWEEN: BEADELL RESOURCES LIMITED (ACN 125 222 291)
Applicant
JUDGE:
MCKERRACHER J
DATE:
15 JANUARY 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
These are short reasons for orders I made on 11 December 2012 upon an uncontested application by the applicant (Beadell) for curative orders. By originating process filed on 23 November 2012, and pursuant to s 1322(4) of the Corporations Act 2001 (Cth) (CA), Beadell sought an extension of time for lodging cleansing notices required under s 708A(5)(e) (CA) in respect of two share issues and certain ancillary orders. The application was supported by an affidavit sworn by Beadell’s chief financial officer and company secretary. That affidavit reveals that the non-compliance was inadvertent and prompt steps were taken by Beadell to remedy the situation.
FACTUAL BACKGROUND
Beadell is listed on the Australian Stock Exchange (ASX). On about 28 January 2010, Beadell contracted with Macquarie Capital Group Limited (MCGL) by letter agreement for the provision of funds for Beadell’s acquisition of a project in Brazil. Under that letter agreement, on about 1 April 2010 Beadell entered into a Subscription Agreement with MCGL under which Beadell agreed to issue (and did subsequently issue) options to MCGL for 5 million fully paid ordinary shares in Beadell. Those options were exercised by MCGL.
On 29 August 2012, 5 million shares were issued and allotted to MCGL.
Additionally, on or about 27 January 2010, Beadell entered into another letter agreement with Macquarie Bank Limitd (MBL) for project funding and hedging facilities to fund the development of the same project in Brazil. Under that letter agreement, on or about 1 April 2010 Beadell entered into a Subscription Agreement with MBL under which Beadell agreed to issue (and did subsequently issue) MBL with options to subscribe for 5 million fully paid ordinary shares in Beadell.
MBL exercised its options and on 19 October 2012, 5 million shares were issued and allotted to MBL.
In November, after receipt of an email from a representative of MBL, Beadell’s company secretary became aware that Beadell had inadvertently failed to lodge a cleansing notice under s 708A(5)(e) CA in respect of the August and October share issues.
NO OPPOSITION BY REGULATOR
The Australian Securities and Investments Commission (ASIC) was served with notice of the application prior to the date on which it was listed. ASIC indicated by letter dated 10 December 21012 that it did not wish to be heard and did not intend to attend the hearing of the application.
THE PRINCIPLES AND THEIR APPLICATION
All relevant principles were set out a very short time ago in Sprint Energy Limited, in the matter of Sprint Energy Limited [2012] FCA 1354. The material facts there involved an error similar to the present. Similar principles apply to the present circumstances and similar discretionary considerations arise.
CONSIDERATION
It is not the best use of resources to re-state all the principles set out and considered in Sprint Energy.Suffice it to say that for the same reasons I set out in Sprint Energy, I am satisfied that curative orders are appropriate.
The following orders were made:
1.In respect of the 5,000,000 fully paid ordinary shares in the Applicant issued on 29 August 2012 to Macquarie Capital Group Limited ACN 096 705 109 (MCGL) (the August Securities) the period of 5 business days referred to in section 708A(6) of the Corporations Act 2001 (Cth) (Act) be extended to the second business day after the day on which these orders are entered.
2.In respect of the 5,000,000 fully paid ordinary shares in the Applicant issued on 19 October 2012 to Macquarie Bank Limited ACN 008 583 542 (MBL) (the October Securities) the period of 5 business days referred to in section 708A(6) of the Act be extended to the second business day after the day on which these orders are entered.
3.The notice under section 708A(5)(e) of the Act given to ASX Limited ACN 008 624 691 (ASX) in respect of the August Securities within the period provided for in Order 1 be deemed to take effect as if it had been given to ASX within 5 business days of 29 August 2012.
4.The notice under section 708A(5)(e) of the Act given to ASX in respect of the October Securities within the period provided for in Order 2 be deemed to take effect as if it had been given to ASX within 5 business days of 19 October 2012.
5.Confidential annexures GMB1, GMB2, GMB7 and GMB8 to the affidavit of Gregory Michael Barrett sworn 22 November 2012 (confidential annexures) be kept confidential and kept in sealed envelopes on the Court file.
6.Access to the confidential annexures on the Court file be restricted to the Judges of the Federal Court of Australia (Western Australian District Registry) and their Associates.
7.These orders be entered forthwith.
8.For a period of 28 days from the date of the publication by the Applicant of these Orders on the Applicant’s website, any person who claims to have suffered substantial injustice or is likely to suffer substantial injustice by the making of any or all of the Orders herein has liberty to apply to vary or to discharge them.
9.A sealed copy of these orders be served on the Australian Securities and Investments Commission, ASX, MCGL and MBL within 2 business days of the date of these orders. A copy of these orders also be placed on the website of the Applicant as soon as practicable and remain there for at least 28 days.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 15 January 2013
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