Re Pilbara Minerals Ltd - [2021] WASC 330

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 2021 granting the relief sought and said that I would subsequently publish reasons for my decision. These are the reasons for my decision.

Part 6D.2, Corporations Act

Part 6D.2 of the Act imposes disclosure obligations in relation to the issue and sale of shares.
In certain circumstances, these obligations can be satisfied by lodging what is commonly referred to as a cleansing notice or a prospectus.[1] If disclosure has not been made by the issuer and the shares are on-sold within 12 months, the party to whom the shares are issued may be obliged to make disclosure.[2]
[1] Corporations Act 2001 (Cth), s 708A(5).
[2] Corporations Act, s 707(3). See also ReGolden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17.

Factual background

In support of its application, the plaintiff filed 7 affidavits: two affidavits of Alexander Jeremy Peter Eastwood (general counsel and company secretary of Pilbara Minerals) filed 28 July 2021 and 30 July 2021; an affidavit of Vera Waldby (assistant company secretary of Pilbara Minerals) filed 28 July 2021; an affidavit of Kenneth Edward Brinsden (managing director and chief executive officer of Pilbara Minerals) filed 29 July 2021; two affidavits of Sally-Anne Layman (a director of Pilbara Minerals) both filed 29 July 2021; and an affidavit of Meredith Nancy Campion (a partner of Allen & Overy, the solicitors for Pilbara Minerals) filed 30 July 2021.
Pilbara Minerals is an Australian public company whose securities have been listed on the Australian Securities Exchange (ASX) since 14 September 2007.[3] Pilbara Minerals is a lithium and tantalum producer focused on the development of its 100% owned Pilgangoora Lithium-Tantalum Project based in the Pilbara region of Western Australia.[4] As at 28 July 2021, Pilbara Minerals had 2,898,982,160 shares on issue, 42,578 shareholders and a market capitalisation of approximately $5.131 million.[5]
[3] Affidavit of Alexander Eastwood filed 28 July 2021 [6].
[4] Affidavit of Alexander Eastwood filed 28 July 2021 [8].
[5] Affidavit of Alexander Eastwood filed 28 July 2021 [9], [62].
On 28 November 2018, at a general meeting of shareholders, the shareholders resolved to issue 2,000,000 incentive options to Ms Sally-Anne Layman (Options). The Options were issued on the same date. [6] The terms of the Options included the requirement that on exercise of any Options and the issue of shares, Pilbara Minerals was required to issue a cleansing notice.[7]
[6] Affidavit of Alexander Eastwood filed 28 July 2021 [26], 'AE-9'.
[7] Affidavit of Alexander Eastwood filed 28 July 2021 [27].
On the morning of 25 June 2021, Pilbara Minerals issued an announcement updating the market on various matters.[8] Shortly after this, Ms Layman exercised the Options by writing to Mr Eastwood and Ms Waldby to request they release from escrow the exercise documents which had been completed by Ms Layman and which they already held. Ms Layman requested that the documents be dated and sent to her broker, Mr Ben Crossing at Euroz Hartleys.[9]
[8] Affidavit of Alexander Eastwood filed 28 July 2021 [29], 'AE-10'.
[9] Affidavit of Alexander Eastwood filed 28 July 2021 [33], Affidavit of Vera Waldby filed 28 July 2021 [5(a)].
Subsequently, Ms Waldby instructed the plaintiff's share registry Computershare to issue 2,000,000 new ordinary shares to Ms Layman's nominee, Envision Capital Management Pty Ltd (Nominee) pursuant to the terms of the Options.[10] Mr Rod Somes of Computershare confirmed by email to Ms Waldby at around 4.15 pm, after the market had closed for the day, that the exercise of the Options and issue of the 2,000,000 shares to the Nominee had occurred (25 June Shares).[11]
[10] Affidavit of Vera Waldby filed 28 July 2021 [5(b)(ii)], 'VW-2'.
[11] Affidavit of Vera Waldby filed 28 July 2021 [5(c)], 'VW-3'.
On Monday, 28 June 2021, the Nominee on-sold the 25 June Shares. Mr Crossing confirmed this by email to Ms Waldby and Mr Eastwood at 4.28 pm.[12]
[12] Affidavit of Alexander Eastwood filed 28 July 2021, 'AE-12'.
At this point, neither Mr Eastwood nor Ms Waldby, who had carriage and responsibility of regulatory matters on behalf of Pilbara Minerals, had turned their minds to the necessity to lodge a cleansing notice in relation to the 25 June Shares.
The evidence before me is that the plaintiff's usual process for issuing securities is that:
(a)Ms Waldby drafts the required documents, being an Appendix 2A, a cleansing notice and, where shares are issued to a director of the plaintiff (or an entity the director controls), an Appendix 3Y;[13]
(b)Ms Waldby and Mr Eastwood settle hard copies of the documents in Mr Eastwood's office.[14]
[13] Affidavit of Alexander Eastwood filed 28 July 2021 [35].
[14] Affidavit of Alexander Eastwood filed 28 July 2021 [36].
This process was disrupted in relation to the 25 June Shares because of an announcement by the Premier of Western Australia on 28 June 2021 that the Perth region would go into lockdown at 12.01 am the following day because of the COVID-19 pandemic. In preparation for the lockdown, the majority of Pilbara Minerals' staff, including Ms Waldby and Mr Eastwood, left the office and commenced working from home.[15]
[15] Affidavit of Alexander Eastwood filed 28 July 2021 [38].
On Tuesday, 29 June 2021, following Ms Layman's confirmation to Ms Waldby and Mr Eastwood that the shares had been on-sold, Ms Waldby told Mr Eastwood she would complete the Appendix 3Y.[16] The same morning, Ms Walby and Mr Eastwood discussed the steps that needed to be completed and, among other things, Mr Eastwood instructed Ms Waldby to complete and lodge the Appendix 2A.[17] Due to both of them working from home and Ms Waldby's familiarity with the process, Ms Waldby completed and lodged the Appendix 2A without the document being reviewed by Mr Eastwood.[18]
[16] Affidavit of Vera Waldby filed 28 July 2021 [9(b)].
[17] Affidavit of Vera Waldby filed 28 July 2021 [9(c)]; Affidavit of Alexander Eastwood filed 28 July 2021 [41].
[18] Affidavit of Alexander Eastwood filed 28 July 2021 [41].
On Sunday, 25 July 2021, Ms Waldby and Mr Eastwood were communicating in respect of an unrelated share issue. Mr Eastwood informed Ms Waldby a cleansing notice needed to be prepared and Ms Waldby queried whether one should have been lodged in relation to the 25 June Shares. On Monday, 26 July 2021, Mr Eastwood re-read Ms Waldby's email, realised the omission had occurred and informed the managing director and chairman of the plaintiff of the omission and sought legal advice from external counsel.[19]
[19] Affidavit of Alexander Eastwood filed 28 July 2021 [46], [51].
On 27 July 2021, Pilbara Minerals requested and obtained a trading halt in its shares.[20]
[20] Affidavit of Alexander Eastwood filed 28 July 2021 [52], [68], 'AE-19', 'AE-20'.
On 28 July 2021, the plaintiff issued a cleansing notice under s 708A(5)(e) of the Act in relation to the 25 June Shares and announced it had commenced this application. [21]
[21] Affidavit of Alexander Eastwood filed 28 July 2021 [65] - [66].
At the time of the issue of the 25 June Shares, there was no excluded information of the kind defined in s 708(7) and s 708(8) of the Act and a cleansing notice could have been lodged.[22]
[22] Affidavit of Alexander Eastwood filed 28 July 2021 [50].
Mr Eastwood's evidence was that the failure to lodge a cleansing notice was an oversight that arose for three primary reasons:[23]
(a)he did not focus on the need for a cleansing notice to be lodged because since March 2020, Pilbara Minerals had issued a large number of shares to directors and employees under the Company Award Plan, an employee incentive scheme for the purpose of ASIC Class Order [CO 14/1000] which did not require compliance with pt 6D.2, pt 6D.3 or pt 7.9 of the Act, provided the requisite conditions of eligibility were satisfied;
(b)due to the directions of the Western Australian government issued as a result of the COVID-19 pandemic, both Ms Waldby and Mr Eastwood were working from home. Mr Eastwood believes that if they had both been in the office, they would have discussed and settled the hard copy of the document which may have alerted him to the need for a cleansing notice; and
(c)Mr Eastwood relied on Ms Waldby to prepare the necessary documents and bring them to his attention, so when the need for a cleansing notice was not raised with him, he was not directly aware of it.
[23] Affidavit of Alexander Eastwood filed 28 July 2021 [44].

The power under s 1322, Corporations Act to grant the relief sought

Section 1322 relevantly provides:
(4)Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:
(a)an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation;
(b)an order directing the rectification of any register kept by ASIC under this Act;
(c)an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);
(d)an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;
and may make such consequential or ancillary orders as the Court thinks fit.
...
(6)The Court must not make an order under this section unless it is satisfied:
(a)in the case of an order referred to in paragraph (4)(a):
(i)that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;
(ii)that the person or persons concerned in or party to the contravention or failure acted honestly; or
(iii)that it is just and equitable that the order be made; and
(b)in the case of an order referred to in paragraph (4)(c) - that the person subject to the civil liability concerned acted honestly; and
(c)in every case - that no substantial injustice has been or is likely to be caused to any person.
In considering an application under s 1322 of the Act, the essential principles are:[24]
(a)the prescriptive requirements of the wording in s 1322(4)(a) and the pre-conditions in s 1322(6) need to be satisfied;[25]
(b)the court retains a discretion under s 1322(4)(a) as to whether it makes the orders sought;
(c)these broad powers reflect a 'broad legislative policy' that the law should not inflict unnecessary liability or inconvenience or invalidate transactions because of non-compliance with its requirements where such non-compliance is the product of honest error or inadvertence and where the court can avoid its effects without prejudice to third parties or to the public interest in compliance with the law;[26]
(d)limitations to the broad powers in s 1322 will not be readily implied.[27] Section 1322 is remedial in character and should be applied broadly;
(e)the court can make orders under s 1322(4)(a) on conditions and also make such consequential and ancillary orders as it thinks fit; and
(f)an order can be made under s 1322(4)(a) notwithstanding that the contravention or failure concerned resulted in the commission of an offence.[28]
[24] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174 [20].
[25] Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 [43], [53], [64].
[26] Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418 [29].
[27] Weinstock v Beck [43], [55] - [56], [60], [64].
[28] Corporations Act, s 1322(5).

Disposition

Application by an 'interested party'

I accept that the plaintiff is an interested person who may seek relief, as required by s 1322(4).[29]

Position of ASX and ASIC

[29] Re Caeneus Minerals Ltd [2018] FCA 560 [38]; Re Classic Minerals Ltd [2018] FCA 2039 [34].

The ASX indicated that it was not in a position to either support or oppose the plaintiff's application.[30] ASIC indicated that it neither supported nor opposed the application and did not intend to appear at the hearing of the matter.[31]

Extension of time under s 1322(4)(d)

[30] Affidavit of Meredith Campion filed 30 July 2021 [7], 'MC-6'.

[31] Affidavit of Meredith Campion filed 30 July 2021 [8], 'MC-7'.

The plaintiff sought an extension of time until 28 July 2021 for the lodgment of the cleansing notice.
The test under s 1322(4)(d) was set out by Vaughan J in Re Jaxsta Ltd; Ex parte Jaxsta Ltd:[32]
As to s 1322(4)(d), I derived more guidance from the two-stage process embraced by Barker J in Blaze Asset Pty Ltd v Target Energy Ltd.
There Barker J stated:
'[T]he exercise of the power under s 1322(4) [referring to s 1322(4)(d)] involves in effect a two stage process. First, the Court needs to determine whether, having regard to the circumstances of the case and the general objects of the [Corporations Act 2001 (Cth)], it is appropriate to make an order extending a relevant period, or abridging a relevant period. Secondly, if those circumstances are made out, then the Court must address the question whether any substantial prejudice has been or is likely to be caused to any person by the making of such an order.'
Also, the power under s 1322(4)(d) must be exercised having regard to the general objects and purposes of the relevant statutory provision within the Corporations Act 2001 (Cth) - here the statutory purpose evinced by s 723(3). The court's order must not undermine the reasons for the requirements of the Act. The power must be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with the Act. (footnotes omitted)
[32] Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390 [41] - [43].
The period to be extended may be extended even if it has expired. In this case, the period expired on 2 July 2021 (five business days after 25 June 2021).[33]
[33] Plaintiff's submissions [55].
For the following reasons, I was and am satisfied that, in the circumstances of this case, it is appropriate to grant the extension of time within which the plaintiff lodge the cleansing notice until 28 July 2021.
First, the extension sought is for a short period, being 24 days. Courts have previously issued extensions for the lodgement of cleansing notices of much longer periods.[34]
[34] See, for example, Re Austpac Resources NL [2010] NSWSC 1438.
Second, I accept and find that the failure to lodge the cleansing notice was caused by an inadvertent error. As soon as Mr Eastwood became aware of the oversight, he immediately sought the advice of external counsel and took steps to rectify the position. Since June 2020, Pilbara Minerals has undertaken 13 separate share issues. Cleansing notices were lodged for each of the share issues where one was required.[35] In addition, Pilbara Minerals has reviewed its compliance procedures and will take steps to guard against similar failures occurring in the future.[36]
[35] Affidavit of Alexander Eastwood filed 28 July 2021 [17].
[36] Affidavit of Kenneth Brinsden filed 29 July 2021 [9]; Affidavit of Sally-Anne Layman filed 29 July 2021 [9] - [10].
Third, in the absence of an extension, there are adverse consequences for the plaintiff and its shareholders. Unless orders are made by the court, the plaintiff's shares will continue to be suspended from trading which will deny the shareholders of Pilbara Minerals the opportunity to trade their shares. In addition, the company may potentially lose its ability to lodge a cleansing notice under s 708A(5)(b), which will require the preparation of a prospectus for future issues of shares.
Fourth, given that any sales of the 25 June Shares will have occurred without disclosure, it is possible those transactions are void or voidable. The 25 June Shares were on-sold in multiple parcels and, due to the method in which they were sold, the identities of the transferees cannot be determined.[37] Further, it is difficult to ascertain which shares are the 25 June Shares, meaning there is a potential issue of uncertainty that affects all persons who bought and sold shares between 29 June 2021 and 27 July 2021.
[37] Affidavit of Alexander Eastwood filed 28 July 2021 [59].
Fifth, as has been previously noted by Vaughan J, in facilitating the transaction as originally contemplated, the making of the orders sought is consistent with the conduct of commerce generally.[38] Section 1322(4)(d) of the Act should be exercised in a way which does not unnecessarily stifle corporate and financial activity on technical grounds.[39]
[38] Re Jaxsta Ltd; Ex parte Jaxsta Ltd [50].
[39] Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488 [33].

Sixth, the plaintiff brought the application without delay. Two days after Mr Eastwood realised the significance of the failure, the plaintiff's solicitors had prepared this application and filed it with the court.
Seventh, the additional orders sought by the plaintiff provide for an extension on terms that there is notice to all persons potentially affected, including that there be capacity for them to return before the court under liberty to apply to raise any matters they see fit.
Eight, neither ASIC nor the ASX oppose the application, nor do any shareholders of the plaintiff.[40]

Pre-condition in s 1322(6)(a)

[40] Affidavit of Alexander Eastwood filed 30 July 2021 [15] - [16].

The company submitted that the pre-condition in s 1322(6)(a) of the Act is satisfied in that there is no failure of the persons concerned or the company to act honestly.
In Re ICandy Interactive Ltd, Banks-Smith J undertook a comprehensive review of the relevant principles for determining the meaning of honesty.[41] Relevantly, Banks-Smith J considered that:
[41] Re ICandy Interactive Ltd [2018] FCA 533, (2018) 125 ACSR 369 [54] - [104].
(a)when determining whether someone has acted honestly for the purposes of s 1322, the courts look to absence of evidence of dishonesty and prompt action to remedy the error;[42]
(b)the concept of acting honestly can embrace:[43]
(i)inadvertence or failure to turn one's mind to an issue;
(ii)active but incorrect consideration of a legal issue;
(iii)failure to consider an issue at all; and
(iv)failure to understand or appreciate the significance of non-compliance; and
(c)when testing for honesty, the authorities reveal that the courts look at the company itself, the directors, the company secretary and others as may be concerned.[44]
[42] Re ICandy Interactive Ltd [54], [106] - [107].
[43]Re ICandy Interactive Ltd [55].
[44] Re ICandy Interactive Ltd [60] - [104].
In this case, errors have occurred in the company failing to lodge a cleansing notice. I accept that these errors have occurred through inadvertence rather than any deliberate disregard by the plaintiff or its officers of their obligations under ch 6D of the Act.
I also accept that this is not a case where there has been a failure of the directors of Pilbara Minerals to take an active interest in the company's compliance with the Act or to properly define roles of company officers.

No substantial injustice (s 1322(6)(c))

I have considered the persons and classes of persons who may be impacted by the making of these orders.
First, Ms Layman, through her Nominee, who was issued the impugned shares. The prejudice to her is that the sales of the impugned shares may be void or voidable for want of compliance with the statutory requirements.[45]
[45] Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57 [63].
Second, those people who purchased the shares may have re-sold the impugned shares themselves. Any further sales of shares also will have occurred without the requisite disclosure under pt 6D.2 of the Act.
I find there is no basis for inferring that substantial injustice has been or is likely to be caused to any person by the making of the proposed orders.
I accept that if the orders are not made, there may be substantial injustice to the plaintiff as the offers of and sales of shares may be void or voidable which could give rise to some commercial uncertainty and expense for the company as it must remain involved in problems caused by void or voidable offers and sales of its shares. I also accept there may be substantial injustice to the other ordinary shareholders of the plaintiff, as they may not be able to trade their shares on an open market if the ASX does not lift the current suspension from trading.
It is usual in cases such as these to provide an opportunity for shareholders or other parties to raise a complaint about the proposed orders. The usual timeframe is that there be liberty to apply within 28 days from the date of the order. I accept this is an appropriate timeframe in this case.

No other discretionary reason to withhold relief

There is no evidence of any substantial misconduct, serious wrongdoing or flagrant disregard of the corporate law or the company's constitution so as to warrant refusal of the relief sought.[46]
[46] Re Wave Capital Ltd [29].
There is nothing in the evidence before me that suggests that any minority shareholder interest might be oppressed or any other interest might be affected. I am satisfied that all shareholders impacted by the contravention as well as the ASX and ASIC have been given notice of this hearing. No shareholder or either regulator has sought to intervene in the hearing or given notice that they want to be heard on the application.
In exercising the discretion to grant relief under s 1322(4), a relevant factor is the promptness with which the plaintiff sought to remedy the irregularity once it had been identified.[47] In this case, the plaintiff entered into a trading halt on 27 July 2021, two days after first discovering the cleansing notice had not been issued and commenced these proceedings on 28 July 2021. In this case, I accept that the plaintiff acted diligently after discovering cleansing notices should have been lodged in respect of each of the share issues.

Orders under s 1322(4)(a)

[47] Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22 [60].

The plaintiff also seeks two separate declarations under s 1322(4)(a) of the Act. First, a declaration that the cleansing notice lodged on 28 July 2021 be deemed to take effect as if it had been lodged on 25 June 2021 and second, that any act, matter or thing purporting to have been done under the Act or in relation to a corporation is not invalid by reason of any contravention of a provision of the Act.
I note that:
(a)the proposed validation orders are framed in a declaratory form;
(b)the act, matter or thing, are the lodgement of the notice and the offers and sales of securities; and
(c)the contravention is the offering of securities for sale or sales without proper disclosure as required under s 707(3) of the Act.[48]
[48] Re Caeneus Minerals Ltd [39] - [40]; Re Classic Minerals Ltd [35] - [36].
In respect of the first order, courts have on a number of previous occasions made similar orders.[49] It is not in doubt that the court has power to make orders that are consequential or ancillary to an order extending the period for doing an act, matter or thing under the Act. In Re Imdex Ltd, I discussed whether deeming orders should be made and the circumstances in which deeming orders should be made.[50] I do not propose to repeat those comments. Those comments represent my views on the matter.
[49] Re Charter Hall Ltd [2007] FCA 1316; Re Diversified United Investment Ltd [2008] FCA 720; Re RCR Tomlinson Ltd [2009] FCA 1130; Re Austpac Resources NL; Re Beadell Resources Ltd [2013] FCA 13; Re Micro-X Limited [2019] FCA 1154.
[50] Re Imdex Ltd [2020] WASC 298 [55] - [58].
In this case, for the following reasons, I consider it is appropriate to make the ancillary orders sought by the plaintiff, including the 'deeming order'. First, the evidence before me is that the shares the subject of the 25 June 2021 share issue have been on-sold and it cannot be discounted that there have been re-sales of these shares. In these circumstances, I consider that it is appropriate to make the orders sought to remove any question as to title in the shares of the plaintiff. Second, at the time the application came on for hearing, cleansing notices had been lodged. For that reason, the order did not concern a future act but a past act. Third, where shares are on-sold, the 'deeming order' is a corollary of the orders seeking an extension of time.
The conduct of the plaintiff in failing to lodge the cleansing notices required under the Act was inadvertent and not in blatant disregard of its obligations under the Act. I do not consider that public policy will be undermined by granting the plaintiff the relief sought.

Conclusion

For these reasons, I was and am satisfied that in the circumstances of this case, relief should be granted in the terms sought by the plaintiff. Accordingly, at the conclusion of the hearing, I made orders in the form annexed to these reasons as Annexure 'A'.

Annexure 'A'

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
29 SEPTEMBER 2021