Silver Mines Limited, in the matter of Silver Mines Limited

[2013] FCA 254

FEDERAL COURT OF AUSTRALIA

Silver Mines Limited, in the matter of Silver Mines Limited [2013] FCA 254

Citation:		Silver Mines Limited, in the matter of Silver Mines Limited [2013] FCA 254
Parties:		IN THE MATTER OF SILVER MINES LIMITED ACN 107 452 942
File number:		QUD 149 of 2013
Judge:		DOWSETT J
Date of judgment:		13 March 2013
Date of hearing:	13 March 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	3
Solicitor for the Plaintiff:	Ms G Kee of HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 149 of 2013

IN THE MATTER OF SILVER MINES LIMITED ACN 107 452 942

IN THE MATTER OF SILVER MINES LIMITED ACN 107 452 942
Plaintiff

JUDGE:	DOWSETT J
DATE OF ORDER:	13 MARCH 2013
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1.Pursuant to subsection 1322(4)(a) of the Corporations Act 2001 (Cth), any offer for sale, or sale of any of the following ordinary shares in the Plaintiff occurring between 31 August 2012 and 8 March 2013 inclusive, by the person or persons whom such shares were issued, are not invalid by reason of the failure of the plaintiff to give a ‘Cleansing Notice’ to the Australian Securities Exchange (“ASX”) in accordance with paragraph 7(f) of Australian Securities and Investments Commission Class Order [CO 009/425]:

(a)13,885,890 shares issued in September 2012 by the plaintiff to the persons described in annexure A to the application filed on 13 March 2013 in these proceedings pursuant to a share purchase plan offer made by the plaintiff on 31 August 2012 (“the Share Purchase Plan Offer”);

(b)1,240,000 shares issued on or about 1 November 2012 by the plaintiff to the following persons pursuant to the Share Purchase Plan Offer:

(i)Balcara Enterprises (Hensman S/F);

(ii)Barnato Investments;

(iii)Hobart Properties & Securities; and

(iv)Sanperez Pty Ltd; and

(c)650,000 shares issued on or about 5 November 2012 by the plaintiff to FGC Gold Shop pursuant to the Share Purchase Plan Offer.

THE COURT ORDERS THAT:

2.Pursuant to subsection 1322(4) (c) of the Corporations Act 2001 (Cth), any seller of the shares described in Order 1 above be wholly relieved from civil liability arising out of any contravention of subsections 707(3) and 727(1) of the Corporations Act 2001 (Cth) by reason of the plaintiff’s failure to give a ‘Cleansing Notice’ to the ASX in accordance with paragraph 7(f) of said Class Order in respect of the Share Purchase Plan Offer.

3.A sealed copy of these Orders be served upon the Australian Securities and Investments Commission (“ASIC”) as soon as reasonably practicable.

4.The plaintiff request that ASIC include these Orders on its database.

5.A copy of these Orders be given to each person named in Order 1 above.

6.As soon as reasonably practicable, the plaintiff publish an announcement to the ASX in which a copy of these Orders is included.

7.The plaintiff forthwith request ASX to lift the suspension of trading in the plaintiff’s ordinary shares.

8.For a period of 28 days from the date of the lifting of such suspension and the publication by the ASX of these Orders on the ASX website, whichever is the later, any person who claims to have suffered substantial injustice, or is likely to suffer substantial injustice by the making of Orders 1 and 2 above be at liberty t apply to vary or to discharge such Orders.

9.There be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 149 of 2013

IN THE MATTER OF SILVER MINES LIMITED ACN 107 452 942

IN THE MATTER OF SILVER MINES LIMITED ACN 107 452 942
Plaintiff

JUDGE:	DOWSETT J
DATE:	13 MARCH 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The evidence discloses that in connection with an offer to existing shareholders of the issue of additional shares, the company failed to comply with the requirements of para 7(f)(ii) of ASIC Class Order CO09-425 in that no statement of the relevant kind was given. This is an application pursuant to s 1322 of the Corporations Act 2001 (Cth) for relief from the consequences of such non-compliance. Both the Australian Securities and Investments Commission and the Australian Stock Exchange have indicated that they neither oppose nor consent to the proposed orders.

2. The relief claimed is primarily pursuant to ss 1322(4)(a) and 1322(4)(c). The power conferred upon the Court may only be exercised if the Court is satisfied as to the matters identified in s 1322(6). I am satisfied, for present purposes, as required by s 1322(6)(a)(ii) that the persons involved in the non-compliance acted honestly. I am also satisfied, in respect of subpara 1322(6)(b), that those persons who acquired shares, and subsequently sold them to purchasers, acted honestly in such subsequent transactions. There is no reason to believe to the contrary, given the formal nature of the non-compliance.

3. In those circumstances and having regard to the matters identified in s 1322(4), I am content to make an order in the form sought. The order requires settlement and will be issued in due course.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        26 June 2013