Legal Research
Cases
Re Bellavista Resources Limited

Re Bellavista Resources Limited

Case [2023] WASC 40 15 February 2023

Corporations Act 2001 (Cth)

ASIC Corporations (Disclosing Entities) Instrument 2016/190

Unexplained Delay

Deeming Orders

Remedial Orders

Exemption from Compliance

Corporate Law & Governance

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE BELLAVISTA RESOURCES LIMITED; EX PARTE BELLAVISTA RESOURCES LIMITED [2023] WASC 40
CORAM:   LUNDBERG J
HEARD:   13 FEBRUARY 2023
DELIVERED          :   15 FEBRUARY 2023
FILE NO/S:   COR 23 of 2023
MATTER:   IN THE MATTER OF BELLAVISTA RESOURCES LIMITED

EX PARTE
BELLAVISTA RESOURCES LIMITED
Plaintiff

Catchwords:

Corporations - Application for orders under s 1322(4) of Corporations Act 2001 (Cth) - Failure to lodge half-yearly accounts as required by ss 302 and 320 of Corporations Act 2001 (Cth) - Unexplained delay - Orders made to extend time and deem compliance with ASIC Instrument 2016/190 such that the plaintiff is relieved of the obligation to lodge half-yearly accounts

Legislation:

ASIC Corporations (Disclosing Entities) Instrument 2016/190
Corporations Act 2001 (Cth), s 302, s 320, s 323D, s 1322

Result:

Application allowed

Representation:

Counsel:

Plaintiff

Mr T O Coyle

Solicitors:

Plaintiff

Hamilton Locke

Case(s) referred to in decision(s):

Dana Australia (Holdings) Ltd [2006] FCA 355; (2006) 57 ACSR 99
Ex parte Imdex Ltd [2020] WASC 298
Owen, in the matter of RiverCity Motorway Pty Limited [2014] FCA 1008
Re Affinity Health Ltd [2006] NSWSC 579; (2006) 58 ACSR 461
Re Car Buyers Australia Pty Ltd [2020] FCA 599
Re Clinical Cell Culture Ltd [2004] FCA 1798; (2004) ACSR 362
Re Flight Centre Technology Pty Ltd [2022] NSWSC 367; (2022) 160 ACSR 651
Re Micro-X Limited [2019] FCA 1154
Re Murray River Organics Ltd (2019) 138 ACSR 365; [2019] FCA 1432
Re Novonix Ltd [2019] FCA 2198; (2019) 141 ACSR 636
Re Ozito Industries Pty Ltd [2020] FCA 1432; (2020) 148 ACSR 585
Re Phosphate Resources Ltd [2005] FCA 1705; (2005) 56 ACSR 169
Re Sprintex Ltd [2022] WASC 188
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd (No 2) [2018] WASC 357
Re Yandal Resources Ltd [2022] WASC 338
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396

Table of Contents

A. Introduction

B. Evidence

C. Notice to ASIC and the ASX

D. Relevant Facts

Uncontentious Facts
Unexplained Delay

E. Relevant Legislation

F. Relevant Principles

Overview
Analysis of authorities
Application of s 1322(4) to ASIC Class Orders and ASIC Instruments

G. Disposition

Standing and Power
Revised Form of Orders
Should the jurisdiction be exercised?

H. Conclusion

LUNDBERG J:

A. Introduction

On 6 February 2023, Bellavista Resources Limited (Bellavista Resources or the plaintiff) filed proceedings seeking relief pursuant to s 1322(4) of the Corporations Act 2001 (Cth) (CA or the Act) in respect of a failure by the company to lodge its first half-yearly reports as required by s 302 and s 320 CA (Application).
In particular, the plaintiff sought an order pursuant to s 1322(4)(d) CA extending the end of the company’s first half-yearly reporting period under s 302 CA. The extension of that reporting period which was sought by Bellavista Resources was from 31…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Bellavista Resources Limited

Details

AGLC: Re Bellavista Resources Limited [2023] WASC 40
Case: [2023] WASC 40
Decision Date

CaseChat Overview and Summary

Bellavista Resources Limited (the plaintiff) applied to the Supreme Court of Western Australia for relief under s 1322(4) of the Corporations Act 2001 (Cth) (the Act) in respect of a failure by the company to lodge its first half-yearly reports as required by ss 302 and 320 of the Act. The plaintiff sought an order extending the end of the company’s first half-yearly reporting period under s 302 of the Act, from 31 May 2022 to 30 June 2022. Alternatively, the plaintiff sought an order that a newly prepared addendum be deemed to have been included in the directors’ report for the financial year ending 30 June 2022, together with associated service orders. The relief was sought to bring Bellavista Resources within the relief from compliance permitted by the terms of s 6(2)(b) of ASIC Corporations (Disclosing Entities) Instrument 2016/190. Lundberg J considered that the primary relief sought by the plaintiff was not supported by s 1322(4)(d) of the Act. Instead, the more orthodox manner in which to deal with the plaintiff’s concerns was to permit the plaintiff to secure the relief under ASIC Instrument 2016/190 upon which it would otherwise have sought to rely. Lundberg J made the following orders: (1) Pursuant to s 1322(4)(d) of the Act, the time period within which the plaintiff was required to give notice to the ASX for the purposes of section 6(2)(a)(i)(B) of the ASIC Instrument be extended to 10 February 2023. (2) Pursuant to s 1322(4) of the Act, the giving of notice of these proceedings by the plaintiff to the ASX on 10 February 2023, which included a copy of the addendum, be deemed to be sufficient compliance with the requirement under section 6(2)(a)(i)(B) of the ASIC Instrument to give notice to the ASX. (3) Pursuant to s 1322(4) of the Act, the addendum be deemed to have been included in the plaintiff’s directors’ report for the financial year ending 30 June 2022 and to take effect as sufficient compliance with the requirement under section 6(2)(b) of the ASIC Instrument for the directors’ report to explain and state the matters specified in that section. (4) As soon as reasonably practicable, the plaintiff is to publish an announcement to the ASX in which a copy of these orders is included and place a copy of these orders on its own website to remain there for at least 28 days. (5) For a period of 28 days from the date of publication of these orders on the ASX 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 these orders has liberty to apply to vary or discharge them within that period. (6) A sealed copy of these orders is to be served on ASIC as soon as reasonably practicable and upon service of these orders on ASIC, ASIC is to include these orders on its database. (7) There be no order as to costs.

Orders