Re Jaxsta Ltd; [No 2] - [2019] WASC 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE JAXSTA LTD; EX PARTE JAXSTA LTD [No 2] [2019] WASC 1
CORAM:   VAUGHAN J
HEARD:   21 DECEMBER 2018
DELIVERED          :   21 DECEMBER 2018
PUBLISHED           :   3 JANUARY 2019
FILE NO/S:   COR 222 of 2018

EX PARTE
JAXSTA LTD
Plaintiff

Catchwords:

Corporations law - Securities - Application for further extension of time for quotation of shares pursuant to s 723(3)(b) of the Corporations Act 2001 (Cth) - Order under s 1322(4)(d) of the Corporations Act 2001 (Cth) extending the period for admission to quotation

Legislation:

Corporations Act 2001 (Cth), s 723(3)(b), s 1322(4)(d)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

A J Papamatheos

Solicitors:

Plaintiff

Steinepreis Paganin

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

Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390

VAUGHAN J:

(These reasons were delivered orally. They have been edited to correct matters of grammar and infelicity of expression. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)

Earlier order for extension and reasons

On 7 December 2018 I made orders pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) to extend the time for quotation of shares issued by the plaintiff, Jaxsta Ltd (Jaxsta), under s 723(3)(b) of the Act. Jaxsta now seeks a further short extension - from today, 21 December 2018, to 28 December 2018.
I gave written reasons for the orders I made on 7 December 2018.[1] I do not intend to repeat those reasons. The oral reasons I now give should be understood in the context of, and as if incorporating, the earlier reasons.
[1] Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390.
Specifically, I rely on:
(1)the overview (at pars 1 to 7 of my earlier reasons);
(2)the background facts (at pars 9 to 31 of my earlier reasons); and
(3)the legal framework and statement of applicable legal principles (at pars 32 to 43 of my earlier reasons).
It is clear that, as recorded at par 44 of my earlier reasons, Jaxsta remains an 'interested person' for the purposes of s 1322(4)(d). It is also the case that, as recorded at pars 39 to 40 and 44 of my earlier reasons, the power to extend time under s 1322(4)(d) of the Act applies to the time to effect quotation under s 723(3)(b) of the Act.

Additional materials and activities

For the purpose of today's further extension application, Jaxsta relied on the affidavits that were before me on 7 December 2018. Jaxsta also relied on further affidavits as follows:
(1)an affidavit of Jorge Nigaglioni sworn 20 December 2018;
(2)an affidavit of Toby Hicks sworn 20 December 2018;
(3)an affidavit of Emma Pullen sworn 20 December 2018; and
(4)a further affidavit of Toby Hicks sworn 20 December 2018.
Jaxsta also filed a short set of further written submissions.
The following steps have been taken since the orders of 7 December 2018:
(1)the orders of 7 December 2018…

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

Case: [2019] WASC 1
Decision Date: 3 JANUARY 2019

CaseChat Overview and Summary

The parties involved in this case were Jaxsta Ltd, the plaintiff, and the Australian Securities Exchange (ASX). The dispute arose from a securities matter, specifically an application for a further extension of time for the quotation of shares, as outlined in section 723(3)(b) of the Corporations Act 2001 (Cth). The case was heard by the Federal Court of Australia. The primary issue before the court was whether to grant an extension of the period for the admission to quotation by the ASX of securities of the plaintiff, in accordance with the provisions of section 1322(4)(d) of the Corporations Act 2001 (Cth).

In considering the matter, the court took into account the relevant provisions of the Corporations Act 2001 (Cth) and the circumstances of the case. The court accepted the plaintiff's undertaking that they would not use the $5,269,000 offer proceeds without further order of the court, until the earlier of the expiration of any further extension of the quotation period granted by the court or the date on which the plaintiff's shares recommence trading on the ASX. Based on the circumstances presented and the relevant legislation, the court found that it was appropriate to extend the period set out in section 723(3)(b) of the Corporations Act 2001 (Cth) for the admission to quotation by the ASX of securities of the plaintiff, from 21 December 2018 to 28 December 2018 (inclusive). The court also made orders for the plaintiff to lodge a copy of these orders with the Australian Securities and Investments Commission (ASIC) and to make an announcement to the ASX disclosing the terms of these orders.

The final orders of the court were as follows: (1) The court accepted the plaintiff's undertaking regarding the $5,269,000 offer proceeds. (2) The period for the admission to quotation by the ASX of securities of the plaintiff was extended to 28 December 2018 (inclusive). (3) The plaintiff was required to lodge a copy of these orders with the ASIC and make an announcement to the ASX disclosing the terms of these orders. (4) The plaintiff and all other interested parties, including the ASIC, were granted liberty to apply to revoke or vary the orders upon giving 24 hours' prior written notice.

Orders

Orders of the court

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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

For these reasons I make orders as follows:(1)The court notes and accepts the plaintiff's undertaking, as proffered in the affidavit of Jorge Rafael Nigaglioni sworn 20 December 2018, that the plaintiff will not, without further order of the court, use any of the $5,269,000 offer proceeds as currently held in a separate bank account maintained by the plaintiff until the earlier of:(a)the expiration of the period of any further extension of the quotation period granted by the court pursuant to the application; or (b)the date on which the plaintiff's shares re‑commence trading on the ASX.(2)Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (Corporations Act), the period set out in s 723(3)(b) of the Corporations Act (as extended to 21 December 2018 on 7 December 2018) for the admission to quotation by the Australian Securities Exchange (ASX) of securities of the plaintiff pursuant to the Prospectus lodged on 7 September 2018 and Supplementary Prospectus lodged on 28 September 2018 (Prospectus), is extended to 28 December 2018 (inclusive).(3)The plaintiff forthwith: (a)lodge a copy of these orders with the Australian Securities and Investments Commission (ASIC); and(b)make an announcement to the ASX disclosing the terms of these orders.(4)The plaintiff and all other interested parties, including the ASIC, have liberty to apply to revoke or vary paragraph (2) of these orders upon first giving 24 hours' prior written notice.