Re Spenda Ltd
[2023] WASC 351
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE SPENDA LTD; EX PARTE SPENDA LTD [2023] WASC 351
CORAM: HILL J
HEARD: 6 SEPTEMBER 2023
DELIVERED : 6 SEPTEMBER 2023
PUBLISHED : 15 SEPTEMBER 2023
FILE NO/S: COR 138 of 2023
MATTER: IN THE MATTER OF SPENDA LTD
EX PARTE
SPENDA LTD
Plaintiff
Catchwords:
Corporations - Application for orders under s 1322 of Corporations Act 2001 (Cth) - Failure of company to ratify appointment of auditor at annual general meeting - Failure of company to reappoint auditor following annual general meeting - Where no blatant or flagrant disregard of obligations - Whether orders should be made relieving officers of civil liability - Turns on own facts
Corporations - Securities - Application for orders that sales of securities are not invalid - Application for order that options issued under prospectus are valid - 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 301, s 314, s 327B, s 327C, s 344, s 706, s 707, s 708A, s 1322
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | D P Butler |
Solicitors:
| Plaintiff | : | Murcia Pestell Hillard Lawyers |
Cases referred to in decision:
Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185
Gofur v Bangladesh Islamic Centre of NSW (BIC) [2020] NSWSC 652
Re Bellevue Gold Ltd [2021] WASC 80
Re Caeneus Minerals Ltd [2018] FCA 560
Re Classic Minerals Ltd [2018] FCA 2039
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 Murray River Organics [2019] FCA 931; (2019) 138 ACSR 365
Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396
HILL J:
On 5 September 2023, the plaintiff, Spenda Limited (Spenda), filed an originating process seeking orders under s 1322(4) of the Corporations Act 2001 (Cth) (Act) arising out of contraventions of s 327B(1)(b), s 327C(1), s 301(1) and s 314(1) of the Act. The contraventions occurred as a result of Spenda's failure to have the appointment of HLB Mann Judd (HLB) as their auditor approved at their annual general meeting (AGM) in 2021, and to subsequently appoint HLB as its auditor.
Following discovery of the contraventions, Spenda undertook a review of its issues of securities between 26 May 2021 and 15 August 2023. The review identified twelve separate share and option issues, between 28 February 2022 and 15 August 2023.[1] Each of the cleansing notices lodged in respect of these issues contained a statement that there had been compliance with the provisions of ch 2M of the Act, which, given the failure to ratify HLB's appointment as auditor at the 2021 AGM and subsequently, was not correct. As a result, Spenda applied for orders pursuant to s 1322(4)(a) of the Act to validate the issues of these shares and options. The review also identified the issue of a prospectus on 21 July 2023 for the issue of up to 196.7 million listed options, which may not be valid as a consequence of these matters.
[1] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [20].
In light of the urgency with which the application was brought, I made orders at the conclusion of the hearing on 6 September 2023 and said that I would subsequently publish reasons for my decision. These are those reasons.
Factual background
Spenda is an Australian public company, previously known as Cirralto Limited (Cirralto), whose securities are quoted on the Australian Securities Exchange (ASX).
Until April 2021, Nexia Perth Audit Services Australia Pty Ltd (Nexia) was the auditor of Cirralto. On 30 April 2021, Nexia gave notice that it intended to resign as its auditor.[2]
[2] Affidavit of Justyn Peter Stedwell filed 5 September 2023 'JPS-01'.
On 20 May 2021, HLB was appointed by the directors of Cirralto as its auditor.[3] HLB accepted the appointment on 27 May 2021.[4]
[3] Affidavit of Justyn Peter Stedwell filed 5 September 2023 'JPS-02'.
[4] Affidavit of Justyn Peter Stedwell filed 5 September 2023 'JPS-04'.
On 22 July 2021, the Australian Securities and Investments Commission (ASIC) gave notice consenting to Nexia's resignation as Cirralto's auditor.[5]
[5] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [10], 'JPS-05'.
On 10 August 2021, Cirralto announced to the ASX that HLB had been appointed as its auditor and that a resolution would be put to members at its 2021 AGM to ratify the appointment.[6]
[6] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [11], 'JPS-06'.
The 2021 AGM was not convened until 31 January 2022. A resolution ratifying the appointment of HLB as Spenda's auditors was not included in the notice of meeting. Mr Stedwell, who has been the company secretary of Spenda since October 2009, gave three reasons for this. First, the preparation of the 2021 AGM notice was outsourced to a third party, which was reviewed and updated by Spenda's lawyers. None of them included a resolution to this effect. Second, in his experience, it was unusual for an auditor to resign midway through the year as their resignation typically coincided with the AGM. Third, because there was almost five months between the resignation of Nexia and the notice of meeting being finalised, on his review of the notice of meeting, he overlooked the need for a resolution ratifying the appointment of HLB.[7]
[7] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [23].
Since their appointment as auditor, HLB have carried out the audit of Spenda's financial reports for 2021, 2022 and 2023.[8] HLB was also named as Spenda's auditor in a prospectus issued on 21 July 2023.[9]
[8] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [12], 'JPS-07', [12], 'JPS-08', [15], 'JPS-10'.
[9] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [14], 'JPS-09'.
On 1 September 2023, when reviewing a checklist on another matter, Mr Stedwell discovered the failure to ratify HLB's appointment at the 2021 AGM or to appoint them as auditor following this.[10] Mr Stedwell immediately sought advice from Spenda's external legal advisers and informed the board of directors.[11]
[10] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [19] - [20].
[11] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [27] - [28].
The board of directors resolved that Spenda enter a trading halt prior to the commencement of trading on 4 September 2023 and to commence these proceedings.[12]
[12] Affidavit of Justyn Peter Stedwell filed 5 September 2023 'JPS-14'.
On 4 September 2023, Spenda gave notice to the ASX that HLB's appointment as its auditor had not been ratified at the plaintiff's 2021 AGM and of its intention to bring this application.[13]
[13] Affidavit of Justyn Peter Stedwell filed 5 September 2023 'JPS15'.
These proceedings were commenced on 5 September 2023 and listed for hearing for 6 September 2023.
Mr Stedwell's evidence is that:
(a)between the preparation of the notice for the 2021 AGM and discovery of the irregularity, he did not appreciate, nor did anyone (including HLB) advise him or Spenda that HLB's appointment was required to be approved by HLB's members at the 2021 AGM;[14] and
(b)had he not overlooked the requirement to confirm HLB's appointment left by Nexia's resignation at the 2021 AGM, he would have ensured a resolution to that effect was included in the notice of the 2021 AGM.[15]
[14] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [29].
[15] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [23].
Since the appointment of HLB as Spenda's auditor, independent auditor reports of the financial reports for Spenda and its controlled entities have been signed by Mr Buckley, a partner at HLB, for the financial years 2021, 2022 and 2023. Mr Buckley has confirmed that these audits have been conducted in accordance with Australian Auditing Standards and that HLB's opinions contained within the independent auditor reports for the year ended 30 June 2021, 30 June 2022 and 30 June 2023 were true and fair.[16]
[16] Affidavit of Mark Daniel Williams filed 5 September 2023 'MDW-5'.
Following the discovery of the error in the appointment of the auditor, Spenda and its solicitors have undertaken a review of all issues of securities since 26 May 2021. This review disclosed that between May 2021 and August 2023, Spenda had undertaken twelve separate share or option issues. In relation to eleven of these issues, a notice had been issued under s 708A(5) of the Act. Each notice included a statement that Spenda had complied with the provisions of ch 2M of the Act at the date of giving each notice.[17]
[17] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [18].
Mr Stedwell has reviewed extracts of Spenda's securities registers to determine whether any of the shares or options have been on‑sold. His evidence is that:
(a)in respect of eight of the securities issues, the securities have not been sold or, in respect of the options, have expired;[18] and
(b)in relation to the remaining shares and options issues a number of shares or options have been sold.[19]
[18] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [17].
[19] Affidavit of Justyn Peter Stedwell filed 5 September 2023 [17].
Statutory regime
Financial Reports and appointment of auditor
Chapter 2M of the Act is entitled 'Financial Reports and Audit'. The process for the appointment and removal of auditors is set out in pt 2M.4 of the Act.
Directors of a public company are obliged within one month of registration of the company to appoint an auditor, unless the members at a general meeting have appointed an auditor (s 327A(1)).
Where there is a vacancy in the office of auditor, pursuant to s 327B(1)(b) of the Act, a public company must appoint an auditor to fill the vacancy at each annual general meeting subsequent to the company's first annual general meeting. Section 327B(3) of the Act requires a director of a company to take all reasonable steps to comply with, or to secure compliance with s 327B(1).
Section 327C of the Act deals with circumstances where an auditor is appointed to fill a casual vacancy other than at an annual general meeting. If a vacancy occurs in the office of auditor of a public company, which is not caused by the removal of the auditor from office and there is no surviving or continuing auditor of the company, the directors must, within one month of the vacancy occurring, appoint an auditor to fill the vacancy unless the company at a general meeting has appointed an auditor to fill the vacancy (s 327C(1)). An auditor appointed to fill a casual vacancy under s 327C(1) of the Act holds office until the company's next general meeting (s 327C(2)).
Section 301 of the Act requires a company to have its financial report for a financial year audited in accordance with div 3 of pt 2M.3 and to obtain an auditor's report.
Section 314 of the Act relevantly requires a company to report to its members for a financial year by providing certain specified reports, including the auditor's report, to its members.
Fundraising disclosures
Part 6D.2 of the Act imposes disclosure obligations on corporations in relation to rights issues and the issue and sale of quoted securities.
Section 708A of the Act governs the issue of quoted securities, including shares. In certain circumstances, the disclosure obligations can be satisfied by lodging a cleansing notice (s 708A(5)) or a prospectus. 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.[20]
[20] Corporations Act 2001 (Cth) s 707(3). See also ReGolden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17.
The notice is required to comply with s 708A(6) of the Act which requires the notice to state that, as at the date of the notice, the body has complied with the provisions of ch 2M of the Act.
Power under s 1322 of the Corporations Act to grant relief sought
Section 1322 of the Act 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;
…
(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);
…
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.
On an application under s 1322 of the Act, it is necessary that the prescriptive requirements of the wording in s 1322(4) and the pre‑conditions in s 1322(6) of the Act are satisfied.[21]
[21] Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 [43] (French CJ), [53] (Hayne, Crennan & Kiefel JJ), [64] (Gageler J).
The powers conferred under s 1322 of the Act reflect the broad legislative policy that the law should not unnecessarily invalidate transactions or cause inconvenience because of non‑compliance with the requirements of the Act where such non‑compliance is the result of honest error or inadvertence and where the court can avoid such effects without causing prejudice to third parties or the public interest in ensuring compliance with the law. This broad policy does not authorise the court to lightly set aside the requirements of the Act where such requirements have not been observed. It is necessary for the court to consider the circumstances of each individual case to ensure that it is appropriate to grant the indulgence sought and that, in making such orders, it does not undermine requirements of the Act.[22]
[22] Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418 [29].
In considering an application under s 1322(4) of the Act, the essential principles are:[23]
(a)the prescriptive requirements of s 1322(4) and the pre‑conditions in s 1322(6) need to be satisfied;[24]
(b)the court retains a discretion as to whether it makes the orders sought;
(c)limitations to the broad powers in s 1322 will not be readily implied.[25] Section 1322 is remedial in character and should be applied broadly;
(d)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
(e)an order can be made under s 1322(4)(a) notwithstanding that the contravention or failure concerned resulted in the commission of an offence.[26]
[23] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174 [20].
[24] Weinstock v Beck [43], [53], [64].
[25] Weinstock v Beck [43], [55] - [56], [64].
[26] Corporations Act 2001 (Cth) s 1322(5).
Disposition
Application by an 'interested party'
I accept that Spenda is an interested party who may seek relief, as required by s 1322(4).[27]
Position of ASX and ASIC
[27] Re Caeneus Minerals Ltd [2018] FCA 560 [38]; Re Classic Minerals Ltd [2018] FCA 2039 [34].
Given the urgency with which this matter was brought on, neither the ASX or ASIC were in a position to indicate whether they supported or opposed the application. Neither appeared at the hearing of the matter.
At the hearing, counsel for Spenda justified the urgency of the matter. The urgency arose because the error was discovered some two days before the application was filed and Spenda had entered into a trading halt. The orders sought would enable Spenda to recommence trading following service of the orders on ASIC and the ASX. On this basis, I was satisfied that it was appropriate to proceed with the hearing of the application in the absence of the ASX and ASIC's position being known to the court.
Validation of appointment of HLB Mann Judd as auditor
On the evidence before me, I make the following findings of fact:
(a)Following the resignation of Nexia as Spenda's auditor with effect from 20 April 2021, the directors of Spenda complied with their obligations under s 327C(1) of the Act by appointing HLB as auditor with effect from 20 May 2021.
(b)The directors of Spenda were required, pursuant to s 327B(3) of the Act, to take all reasonable steps to comply with, or to secure compliance with s 327B(1) of the Act to appoint an auditor at its 2021 AGM to fill the vacancy. This did not occur.
(c)HLB provided a written engagement letter to Spenda on 27 May 2021, which comprised HLB's consent to fill the casual vacancy until the 2021 annual general meeting, for the purposes of s 328A(1) of the Act. However, this consent did not translate into a valid appointment given Spenda's failure to ratify the appointment at their 2021 AGM through a resolution of its members.
(d)As no resolution was passed at the 2021 AGM to ratify their appointment, HLB ceased to be the auditor of Spenda at the conclusion of the 2021 AGM.
(e)The board of Spenda did not comply with s 327B(1) of the Act to appoint an auditor following the 2021 AGM, nor was any resolution included in the notice of meeting for the 2022 AGM.
(f)HLB carried out audits for Spenda's 2021, 2022 and 2023 financial reports in accordance with s 301(1) and s 314(1) of the Act and the applicable Australian Accounting Standards. HLB has confirmed the opinions stated in each of these financial reports is correct.
(g)At no stage did a shareholder or any person, including HLB, notify the company secretary or directors of Spenda of the requirement to approve HLB's appointment at the 2021 AGM or 2022 AGM.
I considered the legislative history and objects of ch 2M.4 in Re Bellevue Gold Ltd[28] at [48] ‑ [54]. These reasons for decision reflect my views on this matter. It is not necessary for me to repeat what I said there.
Orders under s 1322(4)(a)
[28] Re Bellevue Gold Ltd [2021] WASC 80.
Spenda sought a declaration under s 1322(4)(a) of the Act that the appointment of HLB as its auditor from 20 April 2021 to date was not invalid by reason of its failure to comply with s 327B(1)(b), s 327C(1), s 301(1) and s 314(1) of the Act.
I accept that the prescriptive requirements of s 1322(4)(a) of the Act are satisfied in that:
(a)the proposed validation order is framed in a declaratory form;
(b)the act, matter or thing is the appointment of HLB pursuant to ch 2M.4 of the Act;
(c)the contravention is the failure by Spenda and its directors to comply with s 327B(1)(b), s 327C(1), s 301(1) and s 314(1) of the Act.
Pre-conditions in s 1322(6)(a)
Spenda submitted that each of the pre‑conditions in s 1322(6)(a) of the Act was satisfied.
For the reasons I expressed in Re Bellevue Gold Ltd at [59], my preliminary view is that the failure to appoint HLB is not an act of a 'procedural nature' within the meaning of that term in s 1322(6)(a)(i) of the Act.[29] However, for the reasons which follow, it is not necessary for me to reach a concluded view on this matter.
[29] See Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185 [103]; Gofur v Bangladesh Islamic Centre of NSW (BIC) [2020] NSWSC 652 [39] - [40].
Turning to the pre-condition in s 1322(6)(a)(ii) of the Act, in Re ICandy Interactive Ltd, Banks-Smith J undertook a comprehensive review of the relevant principles in respect of whether there is no failure of the persons concerned or the company to act honestly.[30] Relevantly, Banks‑Smith J considered that:
[30] 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;[31]
(b)the concept of acting honestly can embrace:[32]
(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; or
(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.[33]
[31] Re ICandy Interactive Ltd [54], [106] - [107].
[32] Re ICandy Interactive Ltd [55].
[33] Re ICandy Interactive Ltd [60] - [104].
In this case, I accept Mr Stedwell's evidence that the failure to appoint HLB as auditor arose through inadvertence. This conclusion is supported by Spenda's promptness in detecting and taking steps to report and rectify this irregularity once it became aware of the issue. On this basis, I accept the pre‑condition in s 1322(6)(a)(ii) of the Act is satisfied.
Section 1322(6)(a)(iii) gives the court a wide discretion in exercising its powers under s 1322 of the Act.[34] I am also satisfied that it would be just and equitable to make the orders sought.
[34] Re Bellevue Gold Ltd [64] - [65] and the authorities cited therein.
In my view, the making of the order sought by the plaintiff would be consistent with the public policy of ch 2M of the Act, which is to ensure that public companies appoint independent auditors to audit the companies' accounts and that audited accounts are lodged within the timeframes specified by the Act.
It is relevant that all relevant parties (HLB, Spenda, and its shareholders) have proceeded on the basis that HLB had been validly appointed as auditor of Spenda. No issue or complaint has been raised in relation to the 2021, 2022 or 2023 accounts or the conduct of the audit (or review) by HLB.
In my view, the granting of the relief sought will remove any doubt as to the compliance by Spenda with its financial reporting obligations and the potential impact on the operations of the company.
No substantial injustice (s 1322(6)(c))
I have considered the classes of persons who may be impacted by the making of these orders, being Spenda, its shareholders and HLB.
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 orders.
I accept that if the orders sought are not made, there may be substantial injustice to each of Spenda and Spenda's security holders as the securities will remain in a trading halt. In addition, in the event that HLB's appointment is not validated and a complaint was raised about the work they had done, it is possible that a legal issue could be raised as to whether an auditor who is not appointed at law is liable for the work performed by them and whether the work is covered by their professional indemnity insurer.
No other discretionary reason to withhold relief
I accept and find that there is no evidence of any substantial misconduct, serious wrongdoing or flagrant disregard of the Act so as to warrant refusal of the relief sought.
There is nothing in the evidence before me that suggests that any minority shareholder interest might be oppressed or that any other interest might be affected. I am satisfied that all shareholders as well as the ASX and ASIC have been notified of Spenda's contraventions of the Act and given notice of this hearing. No-one sought to intervene in the hearing or gave notice that they wanted to be heard on the application.
In exercising the discretion to grant relief under s 1322(4)(a) of the Act, a relevant factor is the promptness with which Spenda sought to remedy the irregularity once it was identified. In this case, Spenda first became aware of the issue on 1 September 2023. Spenda immediately sought legal advice and commenced these proceedings on 5 September 2023. I accept and find that Spenda acted diligently in seeking to remedy the matters that are the subject of this application.
Relief from civil liability
Spenda also sought orders relieving the company and its current and former directors from any civil liability arising out of the contraventions of s 301(1), s 314(1) s 327B(1)(a), s 327C(1) and s 344(1) of the Act by reason of the failure to have the appointment of HLB approved at the 2021 annual general meeting.
Section 1322(4)(c) of the Act permits the court to make an order relieving a person from civil liability for a broad range of contraventions or failures, subject to the conditions in s 1322(6) of the Act that the person concerned acted honestly and that no substantial injustice has been or is likely to be caused to any person.[35]
[35] Re Murray River Organics [2019] FCA 931; (2019) 138 ACSR 365 [28].
A pre‑condition to making an order under s 1322(4)(c) of the Act is that the person to be relieved from civil liability acted honestly.[36]
[36] Corporations Act 2001 (Cth) s 1322(6)(b).
Counsel for Spenda submitted that the relevant parties acted honestly throughout the relevant period as they believed the requirements of the Act had been complied with and acted promptly to rectify the error on its discovery. I accept that the contravention occurred by way of inadvertence or oversight and that there is no evidence that Spenda, or its current or former directors or officers, acted dishonestly. I also accept that the relief sought is appropriately confined to the specific omissions that caused the contravention.
For that reason and having regard to the matters referred to at [47] ‑ [49] above, it is appropriate that Spenda and its current and former officers be relieved of any civil liability arising out of their contraventions of the Act.
Validation of issues of securities subject of a s 708A(5) notice
In addition to the orders sought by Spenda in respect of the appointment of HLB, Spenda also sought orders in respect of twelve separate issues of securities issued by Spenda between 26 May 2021 and 15 August 2023.
I note that:
(a)the proposed validation orders are framed in a declaratory form;
(b)the act, matter or thing is the offer for sale or issue, or sale of securities for the purposes of s 706, s 708A(5) or s 707(3) of the Act;
(c)the contraventions are the offering of securities for sale or sales without proper disclosure in contravention of s 706 and s 707(3) of the Act.
Counsel for Spenda submitted that the pre‑conditions in s 1322(6)(a)(ii) and (iii) of the Act were satisfied.
Mr Stedwell's evidence is that when he issued cleansing notices for these issues or placements, he mistakenly believed there had been compliance with the provisions of ch 2M of the Act. Spenda submitted, which I accept, that this was a genuine error and that there was no failure of the persons concerned, Spenda, or its directors and officers to act honestly.
On this basis, I am satisfied that the pre‑conditions in s 1322(6)(a)(ii) and s 1322(6)(a)(iii) are satisfied.
In considering whether there would be any substantial injustice if the orders were made, I have considered the classes of persons who may be impacted by the making of these orders.
First, the people who were issued the impugned shares. The prejudice to them is that the sale of the impugned shares may be void or voidable.[37] Spenda's failure to comply with the relevant provisions has caused a trading halt of its securities. If orders are not made and the trading halt is not lifted, Spenda's security holders will not have the benefit of a market for their securities.
[37] Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57 [63].
Second, any people who purchased the impugned securities from on-sellers may have on-sold the securities themselves by trading on the open market of the ASX since they were issued. Any further sales will have occurred without disclosure under pt 6D.2 of the Act, and these transactions may also be void or voidable.
I find that 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 sought are not made, there may be substantial injustice to Spenda as the offers of and sales of securities may be void or voidable. This could give rise to commercial uncertainty and expense for the company as it must remain involved in problems caused by void or voidable offers and sales of its securities. I also accept that there may be substantial injustice to the other ordinary security holders of Spenda, as they may not be able to trade their securities on an open market if Spenda's shares are suspended 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 that this is an appropriate timeframe in this case.
For the following reasons, I was and am satisfied that in the circumstances of this case, relief should be granted in the terms sought in respect of the issues of securities. First, the evidence before me is that there have been some sales of the shares and options issued and it cannot be discounted that there have been subsequent resales of these shares and options. In these circumstances, I consider that it is appropriate to make the orders sought to remove any question as to title in the securities of Spenda. Second, the orders sought by Spenda concern a past act and not a future act. Third, I am satisfied that the conduct was inadvertent and not in blatant disregard of Spenda's obligations under the Act. I do not consider that public policy will be undermined by granting the relief sought.
Validation of options issued under prospectus
On 21 July 2023, Spenda issued a prospectus for the offer of up to 196 million listed options under s 713 of the Act. 210,344,167 options were issued on 21 July 2023. Given the non-compliance of Spenda with ch 2M of the Act, there is a question as to whether the options issued by Spenda under the prospectus are valid. For this reason, Spenda sought a declaration that these options issued by Spenda are not invalidated by reason of any contravention of the Act.
In respect of the application under s 1322(4)(a) of the Act, I am satisfied that it is appropriate to make the order sought by Spenda as:
(a)the proposed order is framed in terms of a declaration;
(b)the act, matter or thing is the application for issue of options pursuant to a short-form prospectus (as contemplated by s 723(3)(a) of the Act) issued under s 707(3) of the Act;
(c)the contravention is the offer of securities for sale or sales without proper disclosure in contravention of s 707(3) of the Act.
I am satisfied that the pre-conditions of s 1322(6)(a)(ii) of the Act are satisfied in that there is no failure of the persons concerned or Spenda to act honestly.
For the same reasons, as set out above in respect of the validation of securities which were the subject to a s 708A(5) notice, I consider that the pre-condition in s 1322(6)(a)(iii) is also satisfied in that it is just and equitable for orders to be made validating or confirming the issue of options. For the same reasons, I also consider that no substantial injustice has been or is likely to be caused to any person by validating the options that were issued under the prospectus and consider that substantial injustice may occur if these orders are not made.
In respect of the exercise of discretion under s 1322(4)(a) of the Act, for the reasons set out above at [69], I consider that the court should make the orders sought. There is no evidence of any substantial misconduct or flagrant disregard of the Act which would warrant refusal of the relief sought.
Conclusion
For these reasons, I was satisfied that, in the circumstances of this case, relief should be granted broadly 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.
JN
Associate to the Honourable Justice Hill
15 SEPTEMBER 2023
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