Re Story-I Ltd - [2021] WASC 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE STORY-I LTD; EX PARTE STORY-I LTD [2021] WASC 211
CORAM:   HILL J
HEARD:   11 MAY 2021
DELIVERED          :   11 MAY 2021
PUBLISHED           :   29 JUNE 2021
FILE NO/S:   COR 74 of 2021
MATTER:   IN THE MATTER OF STORY-I LTD

EX PARTE
STORY-I LTD
Plaintiff

Catchwords:

Corporations law - Securities - Application for declaratory relief to validate trading in shares issued without a valid cleansing notice or prospectus - Two instances of securities being issued without a valid cleansing notice - Where no blatant or flagrant disregard of obligations - Where no substantial injustice if orders made - Application granted

Legislation:

Corporations Act 2001 (Cth), s 707(3), 727(1), 708A(5), 1322(4)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

Mr N Wallwork

Solicitors:

Plaintiff

Thomson Geer - Perth

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

Re Caeneus Minerals Ltd [2018] FCA 560
Re Classic Minerals Ltd [2018] FCA 2039
Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22, 34
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 Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57, 67
Re Wave Capital Ltd (2003) 47 ACSR 418, 426
Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418, 426
Weinstock v Beck (2013) 251 CLR 396

HILL J:

On 7 May 2021, the plaintiff, Story-I Limited (Story-I), filed an originating process seeking orders under s 1322(4)(a) of the Corporations Act 2001 (Cth) (Act) relating to contraventions of s 707(3) and s 727(1) of the Act. The contraventions occurred as a result of share sales following two separate instances of shares being issued on 5 July 2018 and 1 February 2021 without a valid cleansing notice or cleansing prospectus.
Story-I has provided a frank and detailed explanation as to the circumstances surrounding these share issues. 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 11 May 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 of the 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, s 708A(5).
[2] Corporations Act, s 707(3). See also ReGolden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17.
The cleansing notice exception can only be relied upon if the preconditions in s 708A(5) of the Corporations Act are met.
The cleansing prospectus exception applies where a prospectus is lodged on or after the date that shares are issued but before the day on which a sale offer is made.[3] Where this occurs, the disclosure requirements for offers and sales of that class of securities are met from that date.
[3] Corporations Act, s 708A(11).

Factual Background

In support of its application, the plaintiff relied on four affidavits: an affidavit of Michael Pixley, a non-executive director of the plaintiff, filed 7 May 2021; an affidavit of Stuart Douglas Usher, the company secretary of the plaintiff, filed 7 May 2021; and two affidavits of Hendrik Christoffel van Aswegen, a partner at Thomson Geer Lawyers, the plaintiff's solicitors, filed 11 May 2021.
Story-I is an Australian public company whose securities are listed on the Australian Securities Exchange (ASX).[4] Story-I undertakes business in Indonesia through a wholly owned subsidiary, PT Inetindo Infocom, an Apple Premium Reseller, Apple Authorised Service Provider and Apple Education Provider.[5]
[4] Affidavit of Stuart Douglas Usher filed 7 May 2021 [11] – [13], 'SDU-1'.
[5] Affidavit of Stuart Douglas Usher filed 7 May 2021 [15].
As at 19 March 2021, Story-I had 813 shareholders, an issued capital of 376,404,857 shares and a market capitalisation of approximately $9,033,000.[6]
[6] Affidavit of Stuart Douglas Usher filed 7 May 2021 [17] – [18].
On 2 March 2020, prior to the opening of the market, shares in the plaintiff were suspended from quotation as a result of the plaintiff's failure to lodge its half year interim financial report for the year ended 31 December 2019 prior to 1 March 2020.[7]
[7] Affidavit of Stuart Douglas Usher filed 7 May 2021 [24], 'SDU-4'.
On 6 March 2020, the plaintiff lodged its half year interim financial report for the period ended 31 December 2019.[8] The report was lodged four days and 28 minutes after its shares were suspended from trading. Mr Usher's evidence was that the outbreak of the COVID-19 pandemic, coupled with the company's main business being situated in Jakarta, Indonesia, caused delays in obtaining the relevant information to complete the financial report and a subsequent delay in the plaintiff's Australian auditors signing off the report.[9]
[8] Affidavit of Stuart Douglas Usher filed 7 May 2021 [26], 'SDU-5'.
[9] Affidavit of Stuart Douglas Usher filed 7 May 2021 [25].
Later that same day, a director of the plaintiff asked Mr Usher why the suspension had not yet been lifted, despite the half year financial report having been lodged.[10] Mr Usher then spoke with Mr Bhowmick, a compliance officer at the ASX, about the delay in the ASX lifting the suspension. Following that phone call, Mr Usher believed that the ASX was still processing the plaintiff's request for the suspension to be lifted.[11] At the close of business on 6 March 2021, trading in the plaintiff's shares remained in suspension.[12]
[10] Affidavit of Stuart Douglas Usher filed 7 May 2021 [28].
[11] Affidavit of Stuart Douglas Usher filed 7 May 2021 [29].
[12] Affidavit of Stuart Douglas Usher filed 7 May 2021 [30].
On 9 March 2020, the next day of trading, Mr Usher noticed that the suspension in trading of the plaintiff's shares had not yet been lifted and spoke with Mr Bhowmick prior to the opening of trade. Mr Bhowmick informed Mr Usher that this was an oversight and that the suspension would be lifted shortly.[13]
[13] Affidavit of Stuart Douglas Usher filed 7 May 2021 [31].
On 9 March 2020 at 10.21am, an ASX announcement was released advising that the plaintiff's securities had been reinstated to official quotation.[14] This meant that trading in the plaintiff's shares was suspended for five days and 21 minutes.

The share issues

[14] Affidavit of Stuart Douglas Usher filed 7 May 2021 [32], 'SDU-7'.

On 1 February 2021, the plaintiff issued a total of 6,488,068 ordinary fully paid shares as follows:
(a)581,818 shares were issued to Endeavour Pacific Pte Ltd (the Endeavour shares) pursuant to an agreement between the plaintiff and Endeavour for the provision of architectural consulting services to the plaintiff.[15] Some of the shares issued to Endeavour may have been sold;[16]
(b)3,937,500 shares were issued to two nominees of Alfavista Corporate Services Pty Ltd (the Alfavista shares) pursuant to a services agreement by which Alfavista agreed to provide corporate advisory services to the plaintiff.[17] All of the Alfavista shares have been on-sold by Alfavista's nominees;[18]
(c)968,750 shares to Mr Pixley and 1,000,000 shares to Mr Pixley's nominee, Endeavour (the Pixley Shares), in lieu of unpaid director fees owing to Mr Pixley in respect of the financial year ending 30 June 2020.[19] None of the shares issued to Mr Pixley have been traded. Some of the shares issued to Endeavour have since been on-sold.[20]
[15] Affidavit of Stuart Douglas Usher filed 7 May 2021 [33].
[16] Affidavit of Stuart Douglas Usher filed 7 May 2021 [77], 'SDU-23'.
[17] Affidavit of Stuart Douglas Usher filed 7 May 2021 [38], [42].
[18] Affidavit of Stuart Douglas Usher filed 7 May 2021 [77], 'SDU-23'.
[19] Affidavit of Stuart Douglas Usher filed 7 May 2021 [46] – [47], [49].
[20] Affidavit of Michael Pixley filed 7 May 2021 [16]; Affidavit of Stuart Douglas Usher filed 7 May 2021 [33].
On 5 February 2021, the plaintiff issued an Appendix 2A form and a cleansing notice in respect of the shares issued on 1 February 2021.[21]
[21] Affidavit of Stuart Douglas Usher filed 7 May 2021 [37], [45], [50], [62], 'SDU-11', 'SDU-14'.
Mr Usher's evidence was that at the time of preparing the cleansing notice, he was aware of the requirement that a cleansing prospectus needed to be lodged instead of a cleansing notice if the company's securities had been suspended for a period of more than five days in the 12 month period before the date of issue.[22]
[22] Affidavit of Stuart Douglas Usher filed 7 May 2021 [54].
On around 27 January 2021, Mr Usher considered whether a cleansing notice could be lodged in respect of the shares to be issued on 1 February 2021.[23] In considering this matter, Mr Usher:
(a)reviewed the ASX website to determine the number of days the plaintiff had been suspended for in March 2020 and reviewed the ASX announcements for the period of 12 months prior to 1 February 2021 to determine whether there were any other periods of suspension, which there were not;[24]
(b)reviewed the 2 March 2020 ASX suspension announcement and counted the days until the announcement on 6 March 2020 that the half yearly financial report had been lodged, and observed that the announcement of reinstatement was published on Monday, 9 March 2020 at 10.21am;[25]
(c)took into account that the ASX announcement of reinstatement on 9 March 2020 referred to the plaintiff's reinstatement as being 'immediately following lodgement of its Half Year Financial Report for the year ended 31 December 2019';[26] and
(d)recalled conversations he had had with Mr Bhowmick in March 2020 in relation to the March 2020 suspension.[27]
[23] Affidavit of Stuart Douglas Usher filed 7 May 2021 [55].
[24] Affidavit of Stuart Douglas Usher filed 7 May 2021 [56].
[25] Affidavit of Stuart Douglas Usher filed 7 May 2021 [57].
[26] Affidavit of Stuart Douglas Usher filed 7 May 2021 [59.3].
[27] Affidavit of Stuart Douglas Usher filed 7 May 2021 [58].
On 27 January 2021, Mr Usher emailed Mr Bhowmick to seek clarification of the ASX's position as to the 21 minutes of suspension on 9 March 2020.[28] Mr Bhowmick's response was that the plaintiff's securities had been suspended 'up to and including 6 March 2020'.[29] As a result, Mr Usher formed the view that the plaintiff was entitled to issue a cleansing notice because the 21 minutes of suspension on 9 March 2020 did not count towards the calculation of suspended days in the 12 month period before the issue of the shares.[30]
[28] Affidavit of Stuart Douglas Usher filed 7 May 2021 [60], 'SDU-13'.
[29] Affidavit of Stuart Douglas Usher filed 7 May 2021 [61], 'SDU-13'.
[30] Affidavit of Stuart Douglas Usher filed 7 May 2021 [61].
On 5 February 2021, the plaintiff issued a cleansing notice pursuant to s 708A(5) of the Act in respect of the shares issued on 1 February 2021.[31]
[31] Affidavit of Stuart Douglas Usher filed 7 May 2021 [62], 'SDU-14'.
On 22 March 2021, Mr Bhowmick contacted Mr Usher and informed him that the ASX considered the cleansing notice issued on 5 February 2021 was invalid as the plaintiff had been suspended for more than five days in the prior 12 month period.[32] Immediately upon being made aware of the issue, Mr Usher informed the directors of the plaintiff and sought legal advice.[33]
[32] Affidavit of Stuart Douglas Usher filed 7 May 2021 [63] – [64], 'SDU-15'.
[33] Affidavit of Stuart Douglas Usher filed 7 May 2021 [65], 'SDU-16'.
That same day, on 22 March 2021, the plaintiff requested and obtained a trading halt in its shares.[34]
[34] Affidavit of Stuart Douglas Usher filed 7 May 2021 [66], 'SDU-17'.
On 24 March 2021, after the expiry of the trading halt, the plaintiff requested and obtained a voluntary trading suspension.[35]
[35] Affidavit of Stuart Douglas Usher filed 7 May 2021 [67], 'SDU-18'.
Following discovery of the issue, Mr Usher conducted a review of the previous share issues undertaken by the plaintiff.[36] Mr Usher identified one other instance where the plaintiff failed to lodge a valid cleansing notice.
[36] Affidavit of Stuart Douglas Usher filed 7 May 2021 [70], 'SDU-21'.
On 5 July 2018, the plaintiff issued 24,000,000 shares to two investors located in Singapore, Mr Lee Thiam Seng and Ms Martha Tan Mee Hoon. The plaintiff did not lodge a cleansing notice in respect of these shares.[37] Mr Pixley suspects that the requirement to issue a cleansing notice may have been overlooked by the then company secretary because the share issue on 5 July 2018 was the second of two tranches of shares issued as part of the same capital raising and a cleansing notice in respect of the first tranche had already been lodged in October 2017.[38]
[37] Affidavit of Michael Pixley filed 7 May 2021 [27], [29]; Affidavit of Stuart Douglas Usher filed 7 May 2021 [73].
[38] Affidavit of Michael Pixley filed 7 May 2021 [21] – [31].
The shares issued to Ms Hoon have not been traded.[39] Mr Sen transferred the shares issued to him to Citigroup Nominees Pty Ltd (Citigroup) one week after their issue, who held the shares on his behalf. It has not been possible for Story-I to determine whether any of the shares held by Citigroup on Mr Seng's behalf have been sold in the 12 months following their issue, although some shares held by Citigroup were traded in this period.[40]
[39] Affidavit of Michael Pixley filed 7 May 2021 [32]; Affidavit of Stuart Douglas Usher filed 7 May 2021 [74], 'SDU-22'.
[40] Affidavit of Michael Pixley filed 7 May 2021 [32] – [33]; Affidavit of Stuart Douglas Usher filed 7 May 2021 [75].
On 22 April 2021, the plaintiff lodged a cleansing prospectus in relation to the shares issued on 1 February 2021.[41]
[41] Affidavit of Stuart Douglas Usher filed 7 May 2021 [69], 'SDU-20'.

The power under s 1322 of the 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:[42]
(a)the prescriptive requirements of the wording in s 1322(4) and the pre-conditions in s 1322(6) need to be satisfied;[43]
(b)the court retains a discretion under s 1322(4) as to whether it makes the orders sought;
(c)the broad powers reflect a 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;[44]
(d)implied limitations to the broad powers in s 1322 will not be readily implied.[45] 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.[46]
[42] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174.
[43] Weinstock v Beck (2013) 251 CLR 396 [43], [53] and [64].
[44] Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418, 426 [29].
[45] Weinstock v Beck [43], [55] - [56] and [64].
[46] Corporations Act s 1322(5).

Disposition

Application by an 'interested person'

I accept that the plaintiff is an interested person who may seek relief, as required by s 1322(4) of the Act.[47]

Position of ASX and ASIC

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

The ASX indicated that it did not intend to appear at the hearing.[48] ASIC indicated that it neither supports nor opposes the application and did not intend to appear at the hearing of the matter.[49]

Orders under s 1322(4)(a) of the Act

[48] First affidavit of Hendrik Christoffel van Aswegen filed 11 May 2021 [24], 'HVA-4'.

[49] First affidavit of Hendrik Christoffel van Aswegen filed 11 May 2021 [20], 'HVA-2'.

The plaintiff seeks a declaration under s 1322(4)(a) of the Act that any offer for sale or sale of the quoted securities issued on 5 July 2018 and on 1 February 2021 is not invalid, by reason of the failure of the plaintiff to issue a cleansing notice pursuant to s 708A(6) of the Act or to issue a cleansing prospectus pursuant to s 708A(11) of the Act to exempt the sellers from the obligation of disclosure under the Act, or the sellers' consequent failure to comply with s 707(3) and s 727(1) of the Act.
I note that:
(a)the proposed validation orders are framed in a declaratory form;
(b)the act, matter or thing is the offer and sale of securities;
(c)the contravention is the offering of securities for sale or sales without proper disclosure in contravention of s 707(3) of the Act.[50]

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

[50] See Re Caeneus Minerals Ltd [39] - [40]; Re Classic Minerals Ltd [35] - [36].

The company submitted that each of the pre-conditions in s 1322(6)(a) of the Act was satisfied, although it is only necessary for one to be satisfied.
Turning first 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.[51] Relevantly, Banks-Smith J considered that:
[51] 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;[52]
(b)the concept of acting honestly can embrace:[53]
(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.[54]
[52] Re ICandy Interactive Ltd [54], [106] - [107].
[53]Re ICandy Interactive Ltd [55].
[54] Re ICandy Interactive Ltd [60] - [104].

In this case, errors occurred in the plaintiff lodging an invalid cleansing notice for the shares issued on 1 February 2021 and in failing to lodge a cleansing notice for the shares issued on 5 July 2018. In respect of the shares issued on 1 February 2021, the error occurred as a result of the plaintiff having been suspended from trading for a period of five days and 21 minutes prior to the issue of the shares. In respect of the shares issued on 5 July 2018, the plaintiff suspects the error occurred due to an oversight. I accept that these errors occurred honestly, and, in respect of the shares issued on 1 February 2021, because of Mr Usher's belief, after investigation, that the plaintiff's shares had not been suspended for five days when it had in fact been suspended for five days and 21 minutes in the preceding 12 months, rather than any deliberate disregard by the plaintiff or its officers of the obligations under ch 6D of the Act.
I also accept that this is not a case where there has been a failure of the plaintiff's directors to take an active interest in the company's compliance with the Act or to properly define roles of company officers. I accept that the plaintiff's directors had delegated this responsibility to the company secretary.

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

Story-I submits, and I accept, that no substantial injustice would follow from the granting of the orders sought.
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 for want of compliance with the statutory requirements.[55]
[55] Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57, 67 [63].
Second, any people who purchased shares from on-sellers may have on-sold the shares themselves by trading on the open market of the ASX since they were issued. Any further sales of shares will have occurred without the requisite disclosure under pt 6D.2 of the Act.
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 the plaintiff as the offers of and sales of shares 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 shares. I also accept that 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 that this is an appropriate timeframe in this case.

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 corporate law or the company's constitution so as to warrant refusal of the relief sought.[56]
[56] Re Wave Capital Ltd 426 [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 notified of the plaintiff's contravention of the Act and given notice of this hearing.[57] No shareholder or either regulator has sought to intervene in the hearing or given notice that they want to be heard on the application.
[57] First affidavit of Hendrik Christoffel van Aswegen filed 11 May 2021 [14] – [24], 'HVA-1', 'HVA-2', 'HVA-3', 'HVA-4'.
In exercising the discretion to grant relief under s 1322(4), a relevant factor is the promptness with which the plaintiff has sought to remedy the irregularity once it has been identified.[58] In this case, on 22 March 2021, the plaintiff was informed by the ASX that the cleansing notice lodged in respect of the shares issued on 1 February 2021 was invalid. That same day, the plaintiff sought a trading halt to allow it time to consider the issues in relation to this application before commencing these proceedings on 7 May 2021. On 22 April 2021, the plaintiff lodged a cleansing prospectus in respect of the shares issued on 1 February 2021. The plaintiff also conducted a review of its previous share issues to determine whether there were any further instances of contravention, and upon discovering one further irregularity, has sought an order in respect of that irregularity out of an abundance of caution. I accept that the plaintiff acted diligently after being informed of the issue.
[58] Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22, 34 [60].
In relation to the July 2018 share issue, I have considered whether relief should be granted given that Story-I has not issued a cleansing notice or cleansing prospectus in relation to these shares. In the circumstances of this case, I do not consider this is a reason not to make the proposed orders. The outcome of these proceedings will be the subject of an announcement which will provide the market, together with any shareholders of Story-I, with sufficient information to consider whether or not to seek to relist the matter within the proposed 28 day window.

Conclusion

For the following reasons, I was and am satisfied that in the circumstances of this case, relief should be granted in the terms sought by Story-I. First, the evidence before me is that a number of the shares have been sold. It cannot be discounted that there have been resales 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, on 22 April 2021, a cleansing prospectus was lodged with ASIC in respect of the shares issued on 1 February 2021. For that reason, the order did not concern a future but a past act. Third, I am satisfied that 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.
Accordingly, on 11 May 2021, 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.
HW
Research Associate to the Honourable Justice Hill
29 JUNE 2021