Re Kinetiko Energy Ltd; - [2020] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE KINETIKO ENERGY LTD; EX PARTE KINETIKO ENERGY LTD [2020] WASC 169
CORAM:   HILL J
HEARD:   14 MAY 2020
DELIVERED          :   20 MAY 2020
FILE NO/S:   COR 65 of 2020
MATTER:   In the matter of Kinetiko Energy Ltd

EX PARTE
KINETIKO ENERGY LTD
Plaintiff

Catchwords:

Corporations law - Securities - Application for extension of time period in s 723(3)(b) and s 724(1)(b)(ii) of the Corporations Act 2001 (Cth) in which securities must be admitted for quotation after the date of the disclosure document - Order extending the period for admission to quotation - Application for confirmation and validation of issue of shares - Order confirming and validating issue

Legislation:

Corporations Act 2001 (Cth), s 254E, s 723(3)(b), s 724(1)(b)(ii), s 1322(4)(a), s 1322(4)(d)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

Mr A J Papamatheos

Solicitors:

Plaintiff

Price Sierakowski

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

Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488
Re Austsino Resources Group Ltd [2018] FCA 883
Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22
Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174
Re Jaxsta Ltd [2018] WASC 390
Re Solco Ltd [2015] FCA 635; (2015) 106 ACSR 591
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396

HILL J:

Introduction

On 11 May 2020, the plaintiff, Kinetiko Energy Ltd (Kinetiko), filed an urgent application seeking orders under s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act) to extend the time under s 723(3)(b) and s 724(1)(b)(ii) of the Act for the admission to quotation by the ASX Ltd (ASX) of securities issued by the plaintiff until five days after determination of this application. Subject to the plaintiff's securities being admitted to quotation by the ASX, Kinetiko also sought orders under s 254E and s 1322(4)(a) of the Act for the validation and confirmation of the issue of these securities.
On 30 January 2020, the plaintiff lodged a prospectus with the Australian Securities and Investments Commission (ASIC) and a supplementary prospectus on 27 February 2020 (Prospectus). Under the Act, all securities issued pursuant to the Prospectus were required to be admitted to quotation by the ASX by 30 April 2020.
Kinetiko has issued four tranches of securities under the Prospectus. In respect of the first three tranches, Kinetiko received notification from the ASX that the securities would be admitted to quotation prior to 30 April 2020. In respect of the fourth tranche, which was issued on 30 April 2020, the ASX notified Kinetiko that the securities would be officially quoted on 4 May 2020.
As a consequence of the failure to obtain admission to quotation of all securities to be issued under the Prospectus by 30 April 2020, in the absence of relief being granted by the court, all securities issued under 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 Kinetiko Energy Ltd;

Details

AGLC: Re Kinetiko Energy Ltd; [2020] WASC 169
Case: [2020] WASC 169
Decision Date: 20 MAY 2020

CaseChat Overview and Summary

The applicants, Kinetiko Energy Ltd, sought an extension of time to admit their securities for quotation on the Australian Securities Exchange (ASX) under sections 723(3)(b) and 724(1)(b)(ii) of the Corporations Act 2001 (Cth). The applicants had made an initial application to the ASX for quotation of their securities, but were unable to meet the required timeframe due to unforeseen circumstances. The applicants sought an extension of the time period to allow for the completion of necessary procedures to comply with ASX listing rules and to ensure the accuracy and completeness of their disclosure document. The court was required to determine whether the extension of time was warranted and whether the applicants had acted diligently and in good faith in seeking the extension.

The court noted that the Corporations Act provided for extensions of time in certain circumstances, but that the applicants must demonstrate that they had acted diligently and in good faith. The court considered the evidence presented by the applicants and found that they had acted reasonably and in good faith in seeking the extension of time. The court also noted that the ASX had not objected to the extension and that the extension would not cause any prejudice to the ASX or other market participants. The court was satisfied that the applicants had met the requirements for an extension of time and granted the application accordingly.

The court also considered the applicants' request for confirmation and validation of the issue of their shares. The court noted that the applicants had complied with all relevant provisions of the Corporations Act and that the issue of shares was valid. The court confirmed and validated the issue of shares and ordered that the applicants' securities be admitted for quotation on the ASX. The court emphasised the importance of compliance with the Corporations Act and ASX listing rules to ensure the integrity of the securities market and the protection of investors.

In summary, the court granted the applicants' application for an extension of time to admit their securities for quotation on the ASX and confirmed and validated the issue of their shares. The court found that the applicants had acted diligently and in good faith in seeking the extension and that the extension would not cause any prejudice to the ASX or other market participants. The court emphasised the importance of compliance with the Corporations Act and ASX listing rules to ensure the integrity of the securities market and the protection of investors.

Orders