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Re Mount Burgess Mining N.L.

Re Mount Burgess Mining N.L.

Case [2025] WASC 230 10 June 2025

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE MOUNT BURGESS MINING N.L.; EX PARTE MOUNT BURGESS MINING N.L [2025] WASC 230
CORAM:   HILL J
HEARD:   19 MAY 2025
DELIVERED          :   19 MAY 2025
PUBLISHED           :   10 JUNE 2025
FILE NO/S:   COR 76 of 2025
MATTER:   IN THE MATTER OF MOUNT BURGESS MINING N.L.

EX PARTE
MOUNT BURGESS MINING N.L.
Plaintiff

Catchwords:

Corporations - Application for extensions of time to lodge cleansing notices - Application for declaratory relief to validate trading in securities issued without a valid cleansing notice - Multiple instance of securities being issued without a valid cleansing notice - Where no blatant or flagrant disregard of obligations - Where no substantial injustice if orders made - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 707(3), s 727(1), s 1322(4)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

C C Spencer

Solicitors:

Plaintiff

Thomson Geer

Cases referred to in decision:

Re Austpac Resources NL [2010] NSWSC 1438
Re Beadell Resources Ltd [2013] FCA 13
Re Caeneus Minerals Ltd [2018] FCA 560
Re Charter Hall Ltd [2007] FCA 1316
Re Classic Minerals Ltd [2018] FCA 2039
Re Diversified United Investment Ltd [2008] FCA 720
Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22
Re Golden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17
Re ICandy Interactive Ltd [2018] FCA 533; (2018) 125 ACSR 369
Re Imdex Ltd [2020] WASC 298
Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390
Re Micro-X Ltd [2019] FCA 1154
Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57
Re RCR Tomlinson Ltd [2009] FCA 1130
Re Sprintex Limited (No 2) [2025] WASC 15
Re Wave Capital Ltd (2003) 47 ACSR 418

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

On 16 May 2025, the plaintiff, Mount Burgess Mining NL (Mount Burgess), filed an originating process seeking orders pursuant to s 1322(4)(a), 1322(4)(c) and s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act) in relation to five separate share issues that it has undertaken since July 2020.
In support of its application, Mount Burgess filed an affidavit of Jan Evelyn Forrester, one of its company secretaries, on 16 May 2025, and an affidavit of Caroline Cecilie Spencer on 19 May 2025, confirming service of the application. I have also had the benefit of a written outline of submissions that was filed on 16 May 2025.
At the time the originating process was filed, Mount Burgess also filed a certificate of urgency requesting that the originating process be listed for hearing on an urgent basis on 19 May 2025. It is for that reason that the application has come before me today at 4.30 pm.

Part 6D.2, Act

Part 6D.2 of the Act imposes disclosure obligations on companies in relation to the issue and sale of shares. In certain…

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 Mount Burgess Mining N.L.

Details

AGLC: MOUNT BURGESS MINING N.L. [2025] WASC 230
Case: [2025] WASC 230
Decision Date: 10 JUNE 2025

CaseChat Overview and Summary

The case involves Mount Burgess Mining N.L. and the Australian Securities and Investments Commission (ASIC) as the respondents. The dispute revolves around the company's failure to lodge cleansing notices with the Australian Securities Exchange (ASX) for its securities. The case was heard in the Federal Court of Australia. Mount Burgess Mining N.L. sought an extension of time to lodge the required notices and declaratory relief to validate the trading of securities issued without a valid cleansing notice.

The central legal issue the court had to address was whether Mount Burgess Mining N.L. could be granted extensions of time for lodging cleansing notices and whether the trading of securities issued without a valid cleansing notice could be validated. The company argued that its failure to lodge the notices was not due to any blatant or flagrant disregard of its obligations. Instead, it was a result of administrative errors and oversights. The court had to determine if substantial injustice would be caused by granting the relief sought by the company.

In its decision, the court found that the company's failure to lodge the required cleansing notices was not due to any blatant or flagrant disregard of its obligations. The court noted that the company had made efforts to rectify the situation and had taken steps to ensure compliance with the relevant obligations going forward. The court held that there would be no substantial injustice if the orders were made. The court granted the company an extension of time to lodge the notices and validated the trading of securities issued without a valid cleansing notice.

Orders