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Re Cyprium Metals Ltd

Re Cyprium Metals Ltd

Case [2022] WASC 241 27 July 2022

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE CYPRIUM METALS LTD; EX PARTE CYPRIUM METALS LTD [2022] WASC 241
CORAM:   STRK J
HEARD:   11 JULY 2022
DELIVERED          :   11 JULY 2022
PUBLISHED           :   27 JULY 2022
FILE NO/S:   COR 124 of 2022
MATTER:   IN THE MATTER OF RE CYPRIUM METALS LTD

EX PARTE
CYPRIUM METALS LTD
Plaintiff

Catchwords:

Corporations law - Securities - Application for an order extending the period for issuing a cleansing notice under s 708A of the Corporations Act 2001 (Cth) - Shares issued without a cleansing notice - Where trading of shares prior to issue of cleansing notice - Where failure is inadvertent and there is no blatant or flagrant disregard of obligations - Where statutory pre-conditions are met and there is no other discretary reason to withhold relief - Declarations made

Legislation:

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

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

M Holler & D Hird

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
Ex Parte Archtis Ltd [2021] WASC 55
Ex Parte Imdex Ltd [2020] WASC 298
Metalicity Ltd [2020] WASC 387
Re BPM Minerals Ltd [2021] WASC 329
Re Caeneus Minerals Ltd [2018] FCA 560
Re Classic Minerals Ltd [2018] FCA 2039
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 Jaxsta Ltd [2018] WASC 390
Re Matador Mining Ltd [2021] WASC 132
Re Pilbara Minerals Ltd [2021] WASC 330
Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57
Re Silver Lake Resources Ltd [2012] FCA 32; (2012) 87 ACSR 436
Re Sprint Energy Ltd [2012] FCA 1354
Re Sprintex Ltd [2022] WASC 188
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396
Whitehawk Ltd [2020] WASC 388

TABLE OF CONTENTS

Introduction

Orders sought by the application

Evidence filed in support of the application

The factual background

2020 Placement

Failure to issue a cleansing notice

Identification of the issue

Notice to the ASX and ASIC

Notice to holders of the shares

Investigation of the trading of the shares

No excluded information

Capital raising

Investigation of all share issues since 1 January 2016

Part 6D.2 Corporations Act

The power to grant the relief sought

Disposition

Position of the ASX and ASIC

Application by an 'interested person'

Pre-conditions to the making of orders

Section 1322(6)(a) of the Corporations Act

Section 1322(6)(c) of the Corporations Act - no substantial injustice

No other discretionary reason to withhold relief

Proposed order 1 - extension of time under s 1322(4)(d) of the Corporations Act

Proposed orders 2 and 3…

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 Cyprium Metals Ltd

Details

AGLC: Re Cyprium Metals Ltd [2022] WASC 241
Case: [2022] WASC 241
Decision Date: 27 JULY 2022

CaseChat Overview and Summary

The case of Re Cyprium Metals Ltd involved the applicant, Cyprium Metals Limited, seeking an extension of the period for issuing a cleansing notice under section 708A of the Corporations Act 2001. The applicant had issued shares without a cleansing notice, and there had been trading of shares prior to the issue of such a notice. The applicant sought relief from the court on the basis that the failure to issue a cleansing notice was inadvertent and not due to blatant or flagrant disregard of their obligations. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the statutory preconditions for issuing a cleansing notice had been met and whether there were any discretionary reasons to withhold relief. The court had to consider the inadvertent nature of the failure and whether the applicant had complied with all necessary statutory requirements. Additionally, the court had to assess whether the applicant had any other discretionary reasons to deny relief.

In determining the application, the court found that the statutory preconditions for issuing a cleansing notice had indeed been met by the applicant. The court accepted that the failure to issue a cleansing notice was inadvertent and not due to blatant or flagrant disregard of the applicant’s obligations. The court also found that there were no other discretionary reasons to withhold relief. Consequently, the court granted the applicant’s request for an extension of time to issue the cleansing notice. The court made declarations as requested by the applicant.

The court ordered that a cleansing notice be issued within the extended period, and that the applicant was relieved from any liability that might have arisen from the failure to issue the notice within the original statutory timeframe.

Orders