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…
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- AGLC
- Re Beadell Resources Ltd [2013] FCA 13
- Case
- [2013] FCA 13
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Beadell Resources Ltd’s inadvertent non-compliance with the statutory requirements for issuing a cleansing notice warranted an extension of time. The court had to consider the principles established in similar cases, particularly the decision in Sprint Energy Limited, in the matter of Sprint Energy Limited [2012] FCA 1354, where similar principles were applied. The court needed to assess whether curative orders were appropriate in this case, considering the potential injustice that might result from the non-compliance and the likelihood of Beadell Resources Ltd rectifying the situation if given the opportunity.
The court found that the principles set out in Sprint Energy Limited were applicable to the present case. It was satisfied that the curative orders were appropriate given the inadvertent nature of the non-compliance and the potential substantial injustice that could result from not granting the extension. The court extended the time for issuing the cleansing notices for the share issues in question, deeming the notices to take effect as if they had been given within the statutory period. Additionally, the court ordered that certain confidential documents remain sealed and restricted access to specific individuals. The court also allowed for a period during which any person claiming substantial injustice could apply to vary or discharge the orders.
The court made several orders, including extending the time for issuing cleansing notices for the shares issued on 29 August 2012 and 19 October 2012. It deemed the notices to be effective as if they had been given within the statutory period and ordered the confidentiality of certain annexures. Access to these annexures was restricted to the Judges of the Federal Court of Australia and their Associates. The orders were to be entered forthwith and published on Beadell Resources Ltd’s website for 28 days, with an opportunity for interested parties to apply to vary or discharge the orders if they claimed to have suffered substantial injustice.
Orders
Orders of the court
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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.