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Re Pilbara Minerals Ltd

Re Pilbara Minerals Ltd

Case [2021] WASC 330 29 September 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE PILBARA MINERALS LTD; EX PARTE PILBARA MINERALS LTD [2021] WASC 330
CORAM:   HILL J
HEARD:   30 JULY 2021
DELIVERED          :   30 JULY 2021
PUBLISHED           :   29 SEPTEMBER 2021
FILE NO/S:   COR 128 of 2021
MATTER:   IN THE MATTER OF PILBARA MINERALS LTD

EX PARTE
PILBARA MINERALS LTD
Plaintiff

Catchwords:

Corporations law - Securities - Application for orders extending the period for issuing cleansing notices under s 708A of the Corporations Act 2001 (Cth) - Securities issued without valid cleansing notice - Where trading of securities prior to issue of cleansing notice - Where no blatant or flagrant disregard of obligations - Where no substantial injustice if orders made

Legislation:

Corporations Act 2001 (Cth), s 707, s 708A, s 1322

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

A J Papamatheos

Solicitors:

Plaintiff

Allen & Overy

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

Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488
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 Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174
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 Limited [2019] FCA 1154
Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57
Re RCR Tomlinson Ltd [2009] FCA 1130
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396

HILL J:

On 28 July 2020, the plaintiff, Pilbara Minerals Limited (Pilbara Minerals), filed an originating process seeking orders under s 1322(4)(a) and s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act) in relation to a share issue by the company on 25 June 2021. Pilbara Minerals seeks orders to extend the timeframe under which a cleansing notice may be given under s 708A of the Act, to deem such notice to be effective from 25 June 2021 and to validate any offers or sales of shares between 25 June 2021 and the date of any orders of the court.
Pilbara Minerals has provided a frank and detailed explanation as to the circumstances surrounding the issue of shares on 25 June 2021. On the basis of the evidence before me, I was and am satisfied that the failure was caused by inadvertence rather than any deliberate disregard of the plaintiff's obligations.
In light of the urgency with which the application was brought, I made orders at the conclusion of the hearing on 30 July…

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 Pilbara Minerals Ltd

Details

AGLC: Re Pilbara Minerals Ltd [2021] WASC 330
Case: [2021] WASC 330
Decision Date: 29 SEPTEMBER 2021

CaseChat Overview and Summary

Pilbara Minerals Limited sought an extension of the time limit for issuing cleansing notices in relation to securities issued by the company without the requisite notices. The dispute came before the Federal Court, which was required to determine whether the circumstances justified an extension of the statutory time limit. The primary legal issue was whether the failure to issue the cleansing notices within the required time period constituted a blatant or flagrant disregard of the corporation's obligations under the Corporations Act 2001 (Cth). The court was also required to consider whether the granting of the extension would cause substantial injustice to any party.

The court found that there had been no blatant or flagrant disregard of the corporation's obligations in failing to issue the cleansing notices within the statutory time limit. The company had made reasonable efforts to comply with its obligations, and the delay was not due to any deliberate or reckless behaviour. The court also found that there was no substantial injustice that would be caused to any party if the extension was granted. The securities had been traded on the market prior to the issue of the cleansing notices, and the delay in issuing the notices had not caused any significant harm to the market or to any of the parties involved. The court held that the extension of the time limit was appropriate in the circumstances and granted the application for an extension.

The court ordered that the time limit for issuing the cleansing notices be extended to a date certain. The order was made on the condition that the company take all reasonable steps to ensure that the cleansing notices were issued as soon as possible. The court also ordered that the company pay the costs of the application.

Orders