CITATION: EX PARTE BELLEVUE GOLD LTD [2021] WASC 80
CORAM: HILL J
HEARD: 4 MARCH 2021
DELIVERED : 4 MARCH 2021
PUBLISHED : 25 MARCH 2021
FILE NO/S: COR 33 of 2021
MATTER: IN THE MATTER OF BELLEVUE GOLD LTD
EX PARTE
BELLEVUE GOLD LTD
Plaintiff
Catchwords:
Corporations - Application for orders under s 1322 of Corporations Act 2001 (Cth) - Failure of company to have shareholder nominate auditor prior to annual general meeting - Failure of company to resolve to appoint auditor at annual general meeting - Impact on validity of cleansing notices - Where no blatant or flagrant disregard of obligations - Whether orders should be made relieving officers of civil liability - Appropriate form of orders
Legislation:
Corporations Act 2001 (Cth), s 327B, s 327C, s 328A, s 328B, s 707, s 708A, s 727, s 1322
On 1 March 2020, the plaintiff, Bellevue Gold Limited (Bellevue), filed an originating process seeking orders under s 1322 of the Corporations Act 2001 (Cth) (Act) relating to contraventions of s 327B(1)(b), s 327C(2), s 328A and s 328B of the Act. The contraventions occurred as a result of Bellevue's failure to have a shareholder nominate Grant Thornton as auditor or have the appointment of Grant Thornton as auditor approved at its annual general meetings held in 2018, 2019 and 2020.
These contraventions have had a secondary impact on the company. Eighteen cleansing notices that were issued over this period by Bellevue were also arguably defective. For that reason, Bellevue also applied for orders pursuant to s 1322 of the Act for declarations these notices were not invalid.
In light of the urgency with which the application was brought, I made orders at the…
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.
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Details
AGLC
Re Bellevue Gold Ltd [2021] WASC 80
Case
[2021] WASC 80
Decision Date
CaseChat Overview and Summary
Bellevue Gold Ltd sought orders under s 1322 of the Corporations Act 2001 (Cth) (Act) for validation of its appointment of Grant Thornton as auditor and for declarations that 18 cleansing notices issued by Bellevue were effective. Bellevue alleged that it had failed to have a shareholder nominate Grant Thornton as auditor or have the appointment of Grant Thornton as auditor approved at its annual general meetings held in 2018, 2019 and 2020. The failure to comply with the Act had a secondary impact on the company. Bellevue was also concerned that, as a consequence of the non-compliance with ch 2M of the Act, the cleansing notices were arguably defective. Bellevue sought orders to relieve its current and former officers from any civil liability arising out of the contraventions of the Act. Hill J found that Bellevue was an interested party who could seek relief under s 1322. The court found that Bellevue had not acted honestly in the sense contemplated by s 1322. Hill J was satisfied that it would be just and equitable to make the orders sought by Bellevue. The court also found that there was no basis for inferring that substantial injustice has been or is likely to be caused to any person by the making of the orders sought by Bellevue. The court was satisfied that the plaintiff had acted diligently after being informed of the issue. The court also found that the plaintiff and its current and former directors and officers acted honestly. The court concluded that it was appropriate that the plaintiff and its current and former officers be relieved of any civil liability arising out of their contraventions of the Act. The court also found that the orders sought by Bellevue in respect of the cleansing notices should be granted. The court found that the plaintiff had acted diligently after being informed of the issue. The court also found that the plaintiff and its current and former directors and officers acted honestly. The court concluded that it was appropriate that the plaintiff and its current and former officers be relieved of any civil liability arising out of their contraventions of the Act.