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Re Chameleon Mining NL

Re Chameleon Mining NL

Case [2009] NSWSC 660 8 July 2009

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CITATION: In the Matter of Chameleon Mining NL [2009] NSWSC 660

HEARING DATE(S): 8 July 2009

JUDGMENT DATE :
8 July 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 8 July 2009

DECISION: Refer to para 16 of the judgment.

CATCHWORDS: CORPORATIONS - application for an order under s 1322(4)(d) of the Corporations Act 2001 (Cth) extending the time for a company to give notice of share placement in accordance with disclosure requirements of s 708A(5) and (6)

LEGISLATION CITED: Corporations Act 2001 (Cth)

CASES CITED: Re Chartered Hall Limited [2007] FCA 1316
Re Diversified United Investment Limited [2008] FCA 720
Re AJ Lucas Group Limited [2008] FCA 999

PARTIES: In the Matter of Chameleon Mining NL

FILE NUMBER(S): SC 3610/09

COUNSEL: Applicant: S G Habib

SOLICITORS: Applicant: Piper Alderman

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Wednesday, 8 July 2009

3610/09 In the Matter of Chameleon Mining NL

JUDGMENT

1 HIS HONOUR: This is an application under s 1322(4)(d) of the Corporations Act 2001 (Cth) for an order extending the time for the plaintiff company to give a notice under s 708A(6) and for consequential or ancillary relief.

2 The plaintiff is a listed company. On 4 May 2009 the plaintiff announced a private placement of 50 million ordinary fully paid shares to raise working capital. Unless s 708A applies, and its requirements complied with, persons to whom the shares were issued would need to make disclosure in accordance with Pt 6 D.2 of the Act if that person acquired the shares for the purpose of selling them, or transferring them, or granting interest in them, and offered the shares for sale within twelve months after their issue (s 707(3)(b)(ii)).

3 The placement was completed on 4 June 2009. In the circumstances which pertain in the present case, such disclosure would not be required if the company gave a notice which complied with s 708A (6) (see s 708 (5)(a)-(e)(i)). Section 708A(6) requires a notice which complies with that subsection to be given within five business days after the day on which the relevant securities were issued.

4 The completion of the private placement was duly announced to the Exchange on 4 June 2009. To comply with s 708A(6) the notice was required to have been given by 12 June 2009. The evidence on this application shows that the requirements of paragraphs (a)-(d) of s 708A(5) are satisfied.

5 On or about 25 June 2009 the plaintiff's company secretary was alerted by a call from the Australian Stock Exchange that a notice under s 708A(5)(e) had not been lodged. The company secretary had not been previously aware that the company was required to issue such a notice. A notice purporting to comply with s 708A(6) was issued on 29 June 2009.

6 Section 708A(6) provides:

“ 708A Sale offers that do not need disclosure

Sale offers to which this section applies

...

(6) A notice complies with this…

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 Chameleon Mining NL

Details

AGLC: Re Chameleon Mining NL [2009] NSWSC 660
Case: [2009] NSWSC 660
Decision Date: 8 July 2009

CaseChat Overview and Summary

Chameleon Mining NL applied to the Court for an extension of time to give notice of a share placement. The application was brought under section 1322(4)(d) of the Corporations Act 2001 (Cth) to allow the company to comply with disclosure obligations outlined in sections 708A(5) and (6) of the Act. The application arose due to the company’s failure to provide the required notice within the stipulated timeframe. The court was tasked with determining whether the circumstances warranted an extension and, if so, the appropriate period for the extension.

The primary legal issue before the Court was whether the circumstances of the case justified an extension of time under section 1322(4)(d) of the Corporations Act 2001 (Cth). The Court considered the principles governing the exercise of discretion in such applications, including the importance of compliance with disclosure requirements and the impact of any delay on relevant parties. The Court also assessed the reasonableness of the delay and whether the applicant had acted with due diligence.

In determining the application, the Court acknowledged the significance of timely disclosure in maintaining market integrity and protecting investor interests. The Court noted the company's efforts to rectify the oversight and the potential consequences of the delay on stakeholders. After weighing these factors, the Court found that an extension of time was warranted to allow the company to comply with its disclosure obligations. The Court granted an extension of a specified period, emphasizing the importance of future compliance with the disclosure requirements.

The Court’s orders included granting Chameleon Mining NL an extension of time to provide the required notice under sections 708A(5) and (6) of the Corporations Act 2001 (Cth). The Court also directed the company to take specific steps to ensure compliance with disclosure obligations going forward. The extension was granted subject to the company’s adherence to the terms and conditions set by the Court.

Orders