FEDERAL COURT OF AUSTRALIA
G8 Communications Ltd, in the matter of G8 Communications Ltd [2016] FCA 297
File number: WAD 105 of 2016 Judge: BARKER J Date of judgment: 11 March 2016 Catchwords: CORPORATIONS – where issued shares not admitted for quotation on Australian Stock Exchange within time period in s 723(3)(b) and s 724(1)(b)(ii) of the Corporations Act 2001 (Cth) – application under s 1322(4) of the Corporations Act by issuer of securities for extension of that period – application under s 254E of the Corporations Act for confirmation and validation of the issue of shares – whether breach of statutory trust under s 722 of the Corporations Act – application granted Legislation: Acts Interpretation Act 1901 (Cth) s 2G(2), s 36(1), s 36(2)
Corporations Act 2001 (Cth) s 157(2), s 162(3), s 164(3), s 254E, s 254E(1), s 254E(1)(a), s 722(1), s 722(1)(a), s 722(1)(b), s 722(1)(d), s 723(3)(b), s 723(3)(c), s 723(3)(d), s 724(1)(b)(ii), s 1041H, s 1322, s 1322(2), s 1322(4), s 1322(4)(a), s 1322(4)(c), 1322(4)(d), s 1322(5), s 1322(6), s 1322(6)(a)(i), s 1322(6)(a)(ii), s 1322(6)(a)(iii), s 1322(6)(c), s 1337B(1)
Federal Court of Australia Act 1976 (Cth) s 19
Cases cited: Azure Minerals Limited, in the matter of Azure Minerals Limited [2013] FCA 63
McHugh v Australian Jockey Club Ltd and Others (No 13) (2012) 299 ALR 363; [2012] FCA 1441
Pape v Commissioner of Taxation of the Commonwealth of Australia and Another (2009) 238 CLR 1; [2009] HCA 23
Re Golden Gate Petroleum Ltd (ACN 090 074 785) (2004) 50 ACSR 659; [2004] FCA 1119
Re Laserbond Ltd (2007) 24 ACLC 1,658; [2007] FCA 2056
Re Mosaic Oil NL (ACN 003 329 084) (No 2) (2010) 80 ACSR 281; [2010] FCA 1186
Re NuSep Ltd (ACN 120 047 556) (2007) 62 ACSR 301; [2007] FCA 613
Re Solco Ltd (ACN 084 656 691) (2015) 106 ACSR 591; [2015] FCA 635
Re Tony Barlow Australia Ltd (ACN 008 787 988) (2005) 53 ACSR 1; [2005] FCA 363
Re Wave Capital Ltd (ACN 006 031 161) (2003) 47 ACSR 418; [2003] FCA 969
Shepherd v Hills (1855) 11 Exch 55; (1855) 156 ER 743
Taruga Gold Limited, in the matter of Taruga Gold Limited [2015] FCA 892
Vale v Sutherland (2009) 237 CLR 638; [2009] HCA 26
Weinstock and Another v Beck and Another (2013) 251 CLR 396; [2013] HCA 14
Date of hearing: 11 March 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 63 Counsel for the Plaintiff: Mr AJ Papamatheos Solicitor for the Plaintiff: Price Sierakowski ORDERS
WAD 105 of 2016 IN THE MATTER OF G8 COMMUNICATIONS LTD (ACN 009 076 233)
G8 COMMUNICATIONS LTD (ACN 009 076 233)
Plaintiff
JUDGE:
BARKER J
DATE OF ORDER:
11 MARCH 2016
THE COURT ORDERS THAT:
1.Pursuant to s 1322(4)(d) of the Corporations Act2001 (Cth), the period set out in s…
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- Re G8 Communications Ltd [2016] FCA 297
- Case
- [2016] FCA 297
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the plaintiff's application for an extension of time under section 1322(4) of the Corporations Act was valid and whether the delay in admitting the shares to quotation constituted a breach of statutory trust under section 722. The court also had to decide if the issue of shares could be validated and confirmed under section 254E of the Corporations Act, given the circumstances. The court found that the delay in admitting the shares to quotation was not due to any fault of the plaintiff and that the delay was minimal and without prejudice to any shareholder. The court concluded that the plaintiff had acted diligently and that there was no breach of statutory trust. The application for an extension of time was granted, and the issue of shares was validated and confirmed.
The court ordered that the period for admitting the newly issued shares to quotation by the ASX be extended to five business days after the making of the order, which was 18 March 2016. The court further validated and confirmed the issue of shares by the plaintiff, subject to the shares being admitted to quotation by 18 March 2016. The plaintiff was directed to lodge a copy of the orders with the Australian Securities and Investments Commission and to make an announcement to the ASX upon listing. The plaintiff and all interested or affected parties were granted liberty to apply to vary the orders upon giving 24 hours prior written notice.
Orders
Orders of the court
1. Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth), the period set out in s 723(3)(b) and s 724(1)(b)(ii) of the Corporations Act for the admission to quotation by ASX Limited (ASX) of securities of the plaintiff issued pursuant to the prospectus dated 27 November 2015 (prospectus), be extended to the date which is five business days after the making of this order, being 18 March 2016.
2. Subject to the plaintiff’s securities being admitted to quotation by ASX within five business days after the making of this order, being 18 March 2016, pursuant to s 254E and s 1322(4)(a) of the Corporations Act, the issue of shares by the plaintiff pursuant to the prospectus is hereby validated and confirmed.
3. The plaintiff forthwith lodge a copy of these orders with the Australian Securities and Investments Commission.
4. Upon the plaintiff becoming listed on the ASX, the plaintiff make an announcement to the ASX disclosing the terms of these orders.
5. The plaintiff and all other interested or affected parties have liberty to apply to vary these orders upon first giving 24 hours prior written notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On 11 March 2016, the Court made the above orders relating to the admission for quotation by the Australian Stock Exchange Limited (ASX) of securities of the plaintiff under s 254E(1) and s 1322(4)(a) and (d) of the Corporations Act2001 (Cth). These are the reasons for so doing, which reflect the careful submissions made by counsel for the plaintiff on the hearing of the originating process filed 9 March 2016. This relief is sought in order to allow the plaintiff to complete a corporate restructure which commenced in mid-October 2015. By the restructure, the plaintiff will have:(a)changed its name from “Leopard Resources NL” to “G8 Communications Limited”;(b)changed the business focus of the plaintiff, from mineral exploration to a wireless technology business;(c)changed its status from a “No Liability” or “NL” company to a “Limited” public company;(d)purchased shares in G8 International Connect Inc, which in turn holds shares in other companies with a prospective next generation wireless technology business, which purchase is conditional on completion of a capital raising (below); and(e)completed a public capital raising for $4,500,000.00 through the issue of further shares in the plaintiff pursuant to the prospectus of 27 November 2015, with those shares admitted to quotation on the ASX. As at the end of February 2016, the plaintiff had essentially undertaken all steps necessary to complete this restructure, except that:(a)the change of company status would occur automatically on 27 February 2016 (being one month after the Australian Securities and Investments Commission (ASIC) published the notice of 27 January 2016 in the Gazette pursuant to s 164(3) of the Corporations Act); and(b)the ASX had to admit for quotation the newly issued shares from the prospectus on or before three months after 27 November 2015 (as required by s 723(3)(b) and s 724(1)(b)(ii) of the Corporations Act, otherwise the issue of those shares would be deemed void after 29 February 2016 and the plaintiff would be obliged to repay the money received from shareholders for those shares). Ms Nicola Maxine Farley, company secretary for the plaintiff and an employee of the plaintiff’s corporate advisors, had made enquiries of the ASX on Thursday 25, Sunday 28 and Monday 29 February 2016 as to the final step of admitting the newly issued shares to quotation. 27 February 2016 was a Saturday. By application of the Acts Interpretation Act 1901 (Cth) s 2G(2) and s 36(1) and (2), the due date was actually Monday 29 February 2016:(1)sections 723(3)(b) and 724(1)(b)(ii) use the words “within 3 months after the date of the disclosure document” (emphasis added [in original submission]), so they specify a date (Friday 27 November 2015) then choose the date after that from which to calculate time (Saturday 28 November 2015) (see the effect of this under Item 6 of the Table in s 36(1) of the Acts Interpretation Act, that a period of time expressed to begin after a specified day does not include the day);(2)then, to determine the amount of time that three months is, s 2G(2) of the Acts Interpretation Act requires that the three months ends on the date before the date identified three calendar months later. Three months from Saturday 28 November 2015 ends on the day before the 28th of the month that is three calendar months later, such that three months from 28 November 2015 ends on 27 February 2016, which was a Saturday; and(3)as such, the provisions of the Corporations Act required a thing to be done and the last day for doing the thing was a Saturday, so the thing may have been done on the next day that was not a Saturday, a Sunday or a holiday: s 36(2) of the Acts Interpretation Act. That is, the admission to quotation could have been done by ASIC and ASX, respectively, on Monday 29 February 2016.