FEDERAL COURT OF AUSTRALIA
Micro-X Limited, in the matter of Micro-X Limited [2019] FCA 1154
File number: VID 780 of 2019 Judge: MOSHINSKY J Date of judgment: 25 July 2019 Catchwords: CORPORATIONS – application for relief under s 1322 of the Corporations Act 2001 (Cth) in relation to notices under s 708A(5) and (6) Legislation: Corporations Act 2001 (Cth), ss 707, 708A, 727, 340, 341, 111AS, 111AT, 1322 Cases cited: Re Chameleon Mining NL [2009] NSWSC 660
Re Charter Hall Ltd [2007] FCA 1316
Re Genetic Technologies Ltd [2019] FCA 1088
Re ICandy Interactive Ltd (2018) 125 ACSR 369
Re Impression Healthcare Ltd [2019] FCA 772
Re RCR Tomlinson Ltd [2009] FCA 1130
Re Spectur Ltd [2019] FCA 867
Date of hearing: 25 July 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 21 Counsel for the Plaintiff: Dr O Bigos Solicitor for the Plaintiff: Arnold Bloch Leibler ORDERS
VID 780 of 2019 IN THE MATTER OF MICRO-X LIMITED (ACN 153 273 735)
MICRO-X LIMITED (ACN 153 273 735)
Plaintiff
JUDGE:
MOSHINSKY J
DATE OF ORDER:
25 JULY 2019
THE COURT ORDERS THAT:
1.The time for service on ASIC by the plaintiff of the originating process and supporting affidavit be shortened to the date of filing.
2.Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act), in respect of the 2,161,695 ordinary shares in the plaintiff, Micro-X Limited (ACN 153 273 735) (MX1), which were issued on 4 June 2019 (4 June 2019 Shares), the period of five business days referred to in s 708A(6)(a) of the Act be extended to the second business day after the day on which these orders are entered.
3.Pursuant to s 1322(4)(a) of the Act, it is declared that a notice under s 708A(5)(e) of the Act given to the Australian Securities Exchange Limited (ASX) in respect of the 4 June 2019 Shares within the period provided for in paragraph 2 above be deemed to take effect as if it had been given to the ASX on 12 June 2019.
4.Pursuant to s 1322(4)(d) of the Act, in respect of the 2,173,913 ordinary shares in MX1 which were issued on 14 June 2019 (14 June 2019 Shares), the period of five business days referred to in s 708A(6)(a) of the Act be extended to the second business day after the day on which these orders are entered.
5.Pursuant to s 1322(4)(a) of the Act, it is declared that a notice under s 708A(5)(e) of the Act given to the ASX in respect of the 14 June 2019 Shares within the period provided for in paragraph 4 above be deemed to take effect as if it had been given to the ASX on 21 June 2019.
6.Pursuant to s 1322(4)(d) of the Act, in respect of the 2,173,913 ordinary shares in MX1 which were issued on 10 July 2019 (10…
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- Re Micro-X Limited [2019] FCA 1154
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- [2019] FCA 1154
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CaseChat Overview and Summary
The court found that the relief sought by MX1 was appropriate given the circumstances. It granted several orders to extend time periods for service and to deem notices to the ASX as having been given on certain dates. The court also declared that offers for sale or sales of certain shares were not invalid due to non-compliance with sections 707(3) and 727(1) of the Corporations Act. Furthermore, it relieved sellers of certain shares from civil liability for the non-compliance with the same sections of the Act. The court reasoned that the relief was necessary to prevent prejudice to the proper administration of justice and to ensure that the statutory requirements were met in a reasonable and practical manner.
Orders
Orders of the court
1. The time for service on ASIC by the plaintiff of the originating process and supporting affidavit be shortened to the date of filing.
2. Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act), in respect of the 2,161,695 ordinary shares in the plaintiff, Micro-X Limited (ACN 153 273 735) (MX1), which were issued on 4 June 2019 (4 June 2019 Shares), the period of five business days referred to in s 708A(6)(a) of the Act be extended to the second business day after the day on which these orders are entered.
3. Pursuant to s 1322(4)(a) of the Act, it is declared that a notice under s 708A(5)(e) of the Act given to the Australian Securities Exchange Limited (ASX) in respect of the 4 June 2019 Shares within the period provided for in paragraph 2 above be deemed to take effect as if it had been given to the ASX on 12 June 2019.
4. Pursuant to s 1322(4)(d) of the Act, in respect of the 2,173,913 ordinary shares in MX1 which were issued on 14 June 2019 (14 June 2019 Shares), the period of five business days referred to in s 708A(6)(a) of the Act be extended to the second business day after the day on which these orders are entered.
5. Pursuant to s 1322(4)(a) of the Act, it is declared that a notice under s 708A(5)(e) of the Act given to the ASX in respect of the 14 June 2019 Shares within the period provided for in paragraph 4 above be deemed to take effect as if it had been given to the ASX on 21 June 2019.
6. Pursuant to s 1322(4)(d) of the Act, in respect of the 2,173,913 ordinary shares in MX1 which were issued on 10 July 2019 (10 July 2019 Shares), the period of five business days referred to in s 708A(6)(a) of the Act be extended to the second business day after the day on which these orders are entered.
7. Pursuant to s 1322(4)(a) of the Act, it is declared that a notice under s 708A(5)(e) of the Act given to the ASX in respect of the 10 July 2019 Shares within the period provided for in paragraph 6 above be deemed to take effect as if it had been given to the ASX on 17 July 2019.
8. Pursuant to s 1322(4)(a) of the Act, it is declared that any offer for sale or sale of the 14 June 2019 Shares during the period after their issue on 14 June 2019 is not invalid by reason of the seller’s failure to comply with s 707(3) and s 727(1) of the Act.
9. Pursuant to s 1322(4)(c) of the Act, any sellers of 14 June 2019 Shares who sold up until the date of this order are relieved from any civil liability arising out of a contravention of s 707(3) and s 727(1) of the Act.
10. Pursuant to s 1322(4)(a) of the Act, it is declared that any offer for sale or sale of the 10 July 2019 Shares during the period after their issue on 10 July 2019 is not invalid by reason of the seller’s failure to comply with s 707(3) and s 727(1) of the Act.
11. Pursuant to s 1322(4)(c) of the Act, any sellers of 10 July 2019 Shares who sold up until the date of this order are relieved from any civil liability arising out of a contravention of s 707(3) and s 727(1) of the Act.
12. The plaintiff is to provide a copy of these orders to:
(a) ASIC;
(b) the ASX; and
(c) the persons to whom the securities referred to in paragraphs 2, 4 and 6 were issued, forthwith.
13. Liberty is reserved, for any person who claims to have suffered substantial injustice or is likely to suffer substantial injustice by the making of any or all of the orders, to apply to vary or to discharge them within 28 days of the entry of the orders.
14. There be no order as to costs.
15. The annexure to the affidavit of Peter Robin Rowland marked “confidential PRR-2” is confidential and may not be inspected by any person who is not a party to this proceeding without the prior leave of the Court.
16. Pursuant to s 37AJ(3) of the Federal Court of Australia Act 1976 (Cth), paragraph 15 of these orders will operate for a period of 12 months, or such other period as the Court orders.
17. Pursuant to s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), the ground for making paragraph 15 of these orders is that it is necessary to prevent prejudice to the proper administration of justice.
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
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