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Re BPM Minerals Ltd

Re BPM Minerals Ltd

Case [2021] WASC 329 30 July 2021

Contract Formation

Unconscionable Conduct

Corporate Law & Governance

Administrative Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE BPM MINERALS LTD; EX PARTE BPM MINERALS LTD [2021] WASC 329
CORAM:   HILL J
HEARD:   30 JULY 2021
DELIVERED          :   30 JULY 2021
PUBLISHED           :   29 SEPTEMBER 2021
FILE NO/S:   COR 125 of 2021
MATTER:   IN THE MATTER OF BPM MINERALS LTD

EX PARTE
BPM MINERALS LTD
Plaintiff

Catchwords:

Corporations law - Securities - Application for extension of time to lodge cleansing notice - Application for declaratory relief to validate trading in shares issued without a valid cleansing notice or prospectus - One instance of securities being issued without a valid cleansing notice - Where no blatant or flagrant disregard of obligations - Where no substantial injustice if orders made - Application granted

Legislation:

Corporations Act 2001 (Cth), s 707, s 708A, s 1322

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

M F Holler

Solicitors:

Plaintiff

Steinepreis Paganin

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

Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488
Re Austpac Resources NL [2010] NSWSC 1438
Re Beadell Resources Ltd [2013] FCA 13
Re Caeneus Minerals Ltd [2018] FCA 560
Re Charter Hall Ltd [2007] FCA 1316
Re Classic Minerals Ltd [2018] FCA 2039
Re Diversified United Investment Ltd [2008] FCA 720
Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22
Re Golden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17
Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174
Re ICandy Interactive Ltd [2018] FCA 533; (2018) 125 ACSR 369
Re Imdex Ltd [2020] WASC 298
Re Jaxsta Ltd [2018] WASC 390
Re Micro-X Limited [2019] FCA 1154
Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57
Re RCR Tomlinson Ltd [2009] FCA 1130
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Weinstock v Beck (2013) 251 CLR 396

HILL J:

On 27 July 2021, the plaintiff, BPM Minerals Limited (BPM), filed an originating process seeking orders under s 1322 of the Corporations Act 2001 (Cth) (Act) relating to contraventions of s 707(3) of the Act. The contraventions occurred as a result of share sales following one instance of shares being issued on 15 July 2021 without a valid cleansing notice pursuant to s 708A(5)(e) of the Act. BPM seeks orders to extend the timeframe under which a cleansing notice may be lodged pursuant to s 708A of the Act, to deem such notice to be effective from 15 July 2021 and to validate any offers or sales of shares in respect of the share issue.
BPM has provided a frank and detailed explanation as to the circumstances surrounding this share issue. On the basis of the evidence before me, I was and am satisfied that the failure was caused by inadvertence rather than any deliberate disregard of the plaintiff's obligations.
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.

Continue reading Re BPM Minerals Ltd

Details

AGLC: Re BPM Minerals Ltd [2021] WASC 329
Case: [2021] WASC 329
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia in Chambers heard an application by BPM Minerals Limited (BPM), a mineral exploration company listed on the Australian Securities Exchange, seeking orders under the Corporations Act 2001 (Cth) to extend the timeframe for lodging a cleansing notice and to validate the sale of shares issued without such notice. The application arose from an inadvertent failure by BPM to lodge a cleansing notice on 15 July 2021 for shares issued that day, in breach of s 708A(5)(e) of the Act. BPM discovered the error on 26 July 2021 and immediately sought legal advice, notified relevant authorities, and placed its shares into a trading halt. The court considered the application under s 1322 of the Act, focusing on whether the relief sought would be appropriate and not cause substantial injustice to any party. Hill J was satisfied that the failure was inadvertent and that the relief sought would not cause substantial injustice, given the prompt action taken by BPM. The court granted the relief sought, including extending the time for lodging the cleansing notice and validating the sale of shares issued without it. The orders also included a declaration that the cleansing notice be deemed effective from the date of the share issue and that the offer or sale of shares is not invalid by reason of the failure to issue the cleansing notice. These orders were made to prevent commercial uncertainty and expense for BPM and its shareholders, and to ensure that the shares could continue to be traded on the ASX.

Orders