WHITEHAWK LTD

[2020] WASC 388

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WHITEHAWK LTD [2020] WASC 388

CORAM:   HILL J

HEARD:   20 OCTOBER 2020

DELIVERED          :   20 OCTOBER 2020

PUBLISHED           :   27 OCTOBER 2020

FILE NO/S:   COR 125 of 2020

EX PARTE

WHITEHAWK 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 & S P Tomasich

Solicitors:

Plaintiff : Steinepreis Paganin

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, 15

Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418

Weinstock v Beck (2013) 251 CLR 396

HILL J:

1On 15 October 2020, the plaintiff, Whitehawk Limited (Whitehawk), 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 three separate share issues by the company in July, August and September 2020. Whitehawk 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 15 October 2020 and to validate any offers or sales of shares in respect of the July share issue between 3 July 2020 and the date of any orders of the court.

2Whitehawk has provided a frank and detailed explanation as to the circumstances surrounding each of these 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.

3In light of the urgency with which the application was brought, I made orders at the conclusion of the hearing on 20 October 2020 granting the relief sought and said that I would subsequently publish reasons for decision.  These are the reasons for my decision.  In publishing my reasons, I have drawn on the helpful submissions of Mr Papamatheos who appeared as counsel for the plaintiff.

Part 6D.2, Corporations Act

4Part 6D.2 of the Act imposes disclosure obligations in relation to the issue and sale of shares.

5In 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.

Factual background

6In support of its application, the plaintiff filed three affidavits: an affidavit of Kevin Hyungsuk Kye (the company secretary of Whitehawk) filed 16 October 2020; an affidavit of Teresa Williams Roberts (the chief executive officer and chairperson of Whitehawk) filed 17 October 2020; and an affidavit of Alexander Ritchie (a solicitor employed by Steinepreis Paganin, Whitehawk's solicitors) filed 19 October 2020.

7Whitehawk is an Australian public company in the technology industry whose securities have been listed on the Australian Securities Exchange (ASX) since 24 January 2018.[3]  Whitehawk provides a cloud-based cyber security exchange platform.[4]  At present, Whitehawk has 187,247,712 shares on issue and 3,015 shareholders.[5]

[3] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [10].

[4] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [14].

[5] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [15].

8On 29 January 2020, Whitehawk entered into a share purchase agreement with RiverFort Global Opportunities PCC (RiverFort) (RiverFort SPA).  Under the RiverFort SPA, RiverFort or its nominee agreed to purchase AUD $1,500,000 worth of Whitehawk shares.  The total number of shares to be acquired was to be calculated by reference to the volume weighted average price (VWAP) for the five trading days immediately prior to the shareholders meeting of Whitehawk which approved the issue of the shares.[6]  On the same day, Whitehawk entered into an equity sharing agreement with RiverFort under which Whitehawk agreed to swap payment for the shares issued under the RiverFort SPA for 12 monthly cash instalments.[7]

[6] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [19].

[7] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [20].

9The resolution to approve the issue of shares to RiverFort was considered and approved by more than 95% of shareholders at the annual general meeting of Whitehawk held on 21 May 2020.[8] 

[8] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [22] - [24].

10On 30 June 2020, Whitehawk and RiverFort varied the two agreements to reduce the purchase price to $1,000,000 worth of ordinary shares in Whitehawk and to increase the share issue price to AUD $0.77 per share.[9]

[9] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [25].

11On 3 July 2020, pursuant to the varied agreements with RiverFort, Whitehawk issued the 12,987,013 ordinary shares to RiverFort's nominee, which ultimately was National Nominees (July Shares).[10] 

[10] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [28] - [29].

12Mr Kye did not lodge a cleansing notice for the July Shares.  His evidence is that, prior to the issue of the shares, he sought advice from Mr Toby Hicks, a partner of Steinepreis Paganin, including advice  on a draft cleansing notice.  In accordance with amendments to the ASX Listing Rules that came into effect on 1 December 2019, Mr  Kye completed an online Appendix 3B.  Prior to implementation of the online system, when completing an Appendix 3B form, Mr Kye would include a cleansing notice and submit it as a single document to the ASX.  Under the new online system, the online form does not allow for the inclusion of a cleansing notice with the Appendix 3B; the cleansing notice must be uploaded as a separate document. 

13Mr Kye’s evidence is that he used the new online system for the first time in February 2020 and, on that occasion, lodged a cleansing notice.[11]  Mr Kye deposed that at the time of the share issue in July 2020, there was administrative pressure on him to issue the shares and that his failure to lodge a cleansing notice was inadvertent.[12]

[11] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [32].

[12] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [33].

14In 2019 and in 2020, Whitehawk entered into consultancy agreements with Viaticus Capital.[13]  As part of the consideration paid to Viaticus under the consultancy agreements, performance rights were issued to Viaticus.  The performance rights automatically converted into shares once certain milestones were reached, being the five-day VWAP reaching a certain level.[14]  The directors of the plaintiff approved the issue of the performance rights to Viaticus under the consultancy agreements on 18 June 2019 and 2 July 2020.[15]

[13] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [35].

[14] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [37].

[15] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [38].

15On 21 August 2020, 3,000,000 performance rights were converted into ordinary shares and issued (August Shares).  The conversion of the performance rights to shares did not require an Appendix 3B to be issued.  Mr Kye completed and lodged an Appendix 2A in respect of the August Shares but failed to lodge a cleansing notice.[16]  

[16] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [40].

16Mr Kye's evidence is that the failure was a result of his oversight of the requirement to lodge the cleansing notice due, in part, to the new online system.  In addition, he deposes that at the time of the issue of the shares, he was required to closely monitor the share price of Whitehawk's shares to determine if the performance milestones had been met and was also receiving a number of requests and enquiries concerning the conversion of options under the Entitlement Issue Prospectus the plaintiff had issued on 17 September 2018.  Mr Kye's evidence was that due to his additional workload associated with these matters, he overlooked the requirement to prepare and lodge a cleansing notice.[17]

[17] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [41] - [45].

17On 22 September 2020, Whitehawk entered into a services agreement with StocksDigital.  Under this agreement, 1,562,735 ordinary shares were to be issued to S3 Consortium Pty Ltd (September Shares).[18] 

[18] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [46] - [47].

18On 25 September 2020, the September Shares were issued.[19] Mr Kye again failed to lodge a cleansing notice.[20] Mr Kye's evidence is that this failure was inadvertent and was due in part to the change in the on‑line system as well as continuing to have to address the conversion of options referred to at [16].[21]

[19] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [48] - [49].

[20] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [50].

[21] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [51].

19On Monday 12 October 2020, during his routine informal review of the announcements issued by Whitehawk to the ASX, Mr Kye became aware cleansing notices had not been issued for the July Shares, August Shares or September Shares.[22]  On discovery of the  error, Mr Kye immediately sought external legal advice, which was received late in the afternoon of 13 October 2020.[23]  On 14 October 2020, the plaintiff entered a trading halt.[24]  On 16 October 2020, the Plaintiff sought and obtained a voluntary suspension of trading of its shares on the ASX.[25]

[22] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [53] - [54].

[23] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [54].

[24] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [54], 'KHK24'.

[25] Affidavit of Alexander Ritchie filed 19 October 2020 ‘AR5’.

20On 15 October 2020, the plaintiff lodged cleansing notices in respect of each of the July Shares, August Shares and September Shares and announced that it was seeking orders from this court for the extension of time within which a valid cleansing notice under the Act. [26] 

[26] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [73], 'KHK30'.

21These proceedings were commenced on 15 October 2020 and were listed before me on an urgent basis on the morning of 20 October 2020.

22Mr Kye's evidence is that he has reviewed the announcements made by Whitehawk at or about the dates of the issues of the July Shares, August Shares and September Shares.  He deposed that on each of these dates, there was no excluded information and a cleansing notice could have been lodged by Whitehawk.[27]  Ms Roberts has confirmed this position.[28]

[27] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [68] - [69].

[28] Affidavit of Teresa Williams Roberts filed 17 October 2020 [22] - [25].

23Mr Kye has reviewed the trading history in respect of the July Shares, August Shares and September Shares.  Some of the July Shares have been sold since 3 July 2020.  None of the August and September Shares have been sold.[29]

[29] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [56] - [63].

24Mr Kye has also reviewed the share price of Whitehawk between mid‑July 2019 and 15 October 2020.  Over this period, the share price of the plaintiff’s shares has increased from $0.095 to a high of $0.19.[30]

[30] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [77] - [79], 'KHK33', 'KHK34'.

25Ms Roberts' evidence is that the directors relied on the company secretary to issue shares in compliance with the plaintiff's obligations under the Act and the ASX Listing Rules.[31]  The evidence of Mr Kye and Ms Roberts is that Whitehawk has considered its processes for issuing shares and complying with its obligations[32]  and intends to put in place new procedures.  These procedures will include Mr Goodale, the chief financial officer of the plaintiff, assisting Mr Kye in respect of future share issues and overseeing that certain items, including the issue of cleansing notices, have occurred.[33]

[31] Affidavit of Teresa Williams Roberts filed 17 October 2020 [17].

[32] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [75] - [76]; Affidavit of Teresa Williams Roberts filed 17 October 2020 [20].

[33] Affidavit of Teresa Williams Roberts filed 17 October 2020 [20].

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

26Section 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.

27In considering an application under s 1322 of the Act, the essential principles are:[34]

(a)the prescriptive requirements of the wording in s 1322(4)(a) and the pre-conditions in s 1322(6) need to be satisfied;[35]

(b)the court retains a discretion under s 1322(4)(a) 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;[36]

(d)implied limitations to the broad powers in s 1322 will not be readily implied.[37] 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.[38]

[34] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174.

[35] Weinstock v Beck (2013) 251 CLR 396 [43], [53] and [64].

[36] Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418, 426 [29].

[37] Weinstock v Beck [43], [55] - [56] and [64].

[38] Corporations Act, s 1322(5).

Disposition

Application by an 'interested party'

28I accept that the plaintiff is an interested person who may seek relief, as required by s 1322(4).[39]

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

Position of ASX and ASIC

29The ASX has indicated that it did not oppose the application nor intend to appear at the hearing.[40]  ASIC indicated that it neither supports nor opposes the application and did not intend to appear at the hearing of the matter.  It formed this view taking into account a number of matters, including that the plaintiff did not seek relief as to its own conduct, its directors or company secretary.[41] 

[40] Affidavit of Alexander Ritchie filed 19 October 2020 'AR2'.

[41] Affidavit of Alexander Ritchie filed 19 October 2020 'AR4'.

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

30The test under s 1322(4)(d) was set out by Vaughan J in Re Jaxsta Ltd; Ex parte Jaxsta Ltd:[42]

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)

[42] Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390 [41] - [43].

31The period to be extended may be extended even if it has expired.  In this case, the periods expired on 10 July 2020, 28 August 2020 and 2 October 2020.

32For 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 to lodge the cleansing notices until 15 October 2020 as sought by the plaintiff in their originating process.

33First, the extension sought is for a short period.  The longest period, in respect of the July Share issue, is three months and 10 days.  Courts have previously granted extensions for the lodgement of cleansing notices for similar periods.[43]

[43] Re Austpac Resources NL [2010] NSWSC 1438.

34Second, the cleansing notice was not lodged due to inadvertence and was promptly rectified upon its discovery by the plaintiff.  Mr Kye's evidence is that issues arose due to the relatively new online system for lodgement introduced by the ASX in December 2019 and that he did not check with external legal counsel whether a cleansing notice was required.[44]  As soon as he became aware of the error, he immediately sought the advice of external counsel to rectify the position.

[44] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [16] - [18] and [31].

35Third, in the absence of an extension, there are adverse consequences for the plaintiff and 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 the plaintiff the opportunity to trade their shares. In addition, the company will 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.

36Fourth, the shareholders who have purchased shares on market since July 2020 may have purchased some of the shares the subject of the July share issue.  Given that any such sales will have occurred without disclosure, this potentially means that these transactions are void or voidable creating title issues for these parties.

37Fifth, in facilitating the transaction as originally contemplated, the making of the orders sought  is consistent with the conduct of commerce generally.[45] Section 1322(4)(d) should be exercised in a way which does not unnecessarily stifle corporate and financial activity on technical grounds.[46]

[45] See Re Jaxsta Ltd; Ex parte Jaxsta Ltd [50].

[46] Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488 [33].

38Sixth, the plaintiff brought the application without delay.  It was four days between Whitehawk first realising the issue and approaching the court.

39Seventh, the additional orders sought by the plaintiff provide for notice to be given to all persons affected and the ability for them to apply to raise any matters with the court.

40Eight, neither ASIC or the ASX oppose the application, nor do any shareholders of the plaintiff.

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

41The company submitted that the pre-condition is satisfied in that there is no failure of the persons concerned or the company to act honestly.

42In Re ICandy Interactive Ltd, Banks-Smith J undertook a comprehensive review of the relevant principles.[47] Relevantly, Banks‑Smith J considered that:

[47] 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 section 1322, the courts look to absence of evidence of dishonesty and prompt action to remedy the error;[48]

[48] Re ICandy Interactive Ltd [54], [106] - [107].

(b)the concept of acting honestly can embrace:[49]

(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.[50]

[49]Re ICandy Interactive Ltd [55].

[50] Re ICandy Interactive Ltd [60] - [104].

43In 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 the obligations under ch 6D of the Act.

44I also accept that this is not a case where there has been a failure of Whitehawk's directors 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))

45I have considered the classes of persons who may be impacted by the making of these orders. 

46First, the people who were issued the impugned shares.  The prejudice to them is that if they seek to offer to sell or sell the impugned shares, such offers or sales may be void or voidable for want of compliance with the statutory requirements.[51]

[51] Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57, 67 [63].

47Second, any people who purchased shares from on-sellers may have on-sold the impugned shares themselves by trading on the open market of the ASX since their issue. Any further sales of shares will have occurred without the requisite disclosure under the Act, pt 6D.2.

48I 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.

49I 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 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.

50It 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

51There 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.[52]

[52] Re Wave Capital Ltd, 426 [29].

52There 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.[53]  No shareholder or either regulator has sought to intervene in the hearing or given notice that they want to be heard on the application.

[53] Affidavit of Kevin Hyungsuk Kye filed 16 October 2020 [74], 'KHK31', 'KHK32'; Affidavit of Alexander Ritchie filed 19 October 2020 [12] - [14], 'AR6' - 'AR10'.

53In 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.[54]  In this case, the plaintiff discovered the cleansing notices had not been issued on 12 October 2020, entered into a trading halt on 14 October 2020 and commenced these proceedings on 15 October 2020.  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.  

[54] Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22, 34 [60].

Orders under s 1322(4)(a)

54The company also seeks two separate declarations under s 1322(4)(a) of the Act. First, in respect of each of the share issues, a declaration that the cleansing notice be deemed to take effect as it if had been given to the ASX on 15 October 2020 and second, in relation to the July share issue, 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.

55I 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 in contravention of s 707(3) of the Act.[55]

[55] Re Caeneus Minerals Ltd [2018] FCA 560, [39] - [40]; Re Classic Minerals Ltd[2018] FCA 2039, [35] - [36].

56In respect of the first order, courts have on a number of previous occasions made similar orders.[56]  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.[57]  I do not propose to repeat those comments.  Those comments represent my views on the matter.

[56] 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 [2010] NSWSC 1438; Re Beadell Resources Ltd [2013] FCA 13 and Re Micro-X Limited [2019] FCA 1154.

[57] Re Imdex Ltd [2020] WASC 298 [55] - [58].

57In this case, for the following reasons, I consider it is appropriate in this case to make the ancillary orders sought by the plaintiff, including the 'deemed order'.  First, the evidence before me is that some of the shares the subject of the July share issue have been 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.

Conclusion

58The 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.

59For 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'

IN THE SUPREME COURT OF WESTERN AUSTRALIA

COR/125/2020

EX PARTE:

WHITEHAWK LIMITED (ACN 620 459 823)  First Plaintiff

ORDER OF JUSTICE HILL

MADE 20 October 2020

UPON APPLICATION of the plaintiff by originating process dated 15 October 2020 AND UPON HEARING Mr A J Papamatheos and Mr S P Tomasich of counsel for the plaintiff IT IS ORDERED that:

3 July 2020 issue of shares

1.Pursuant to section 1322(4)(d) of the Corporations Act 2001 (Cth) (Corporations Act), in respect of the 12,987,013 ordinary fully paid shares in the Plaintiff, which were issued on 3 July 2020, the period of five business days referred to in section 708A(6)(a) of the Corporations Act be extended to 15 October 2020.

2.Pursuant to section 1322(4)(a) of the Corporations Act, it is declared that a notice under section 708A(5)(e) of the Corporations Act given to the Australian Securities Exchange Limited (ASX) in respect of the 12,987,013 ordinary fully paid shares in the Plaintiff, which were issued on 3 July 2020, within the period provided for in paragraph 1 above be deemed to take effect as if it had been given to the ASX on 3 July 2020.

3.Pursuant to section 1322(4)(a) of the Corporations Act, it is declared that any offer for sale or sale of the 12,987,013 ordinary fully paid shares in the Plaintiff, which were issued on 3 July 2020, during the period after their issue to the date of the Court orders is not invalid by reason of:

(a)any failure of a notice under section 708A(5)(e) of the Corporations Act to exempt the sellers from the obligation of disclosure under the Corporations Act; and

(b)the sellers' consequent failure to comply with sections 707(3).

21 August 2020 issue of shares

4.Pursuant to section 1322(4)(d) of the Corporations Act, in respect of the 3,000,000 ordinary fully paid shares in the Plaintiff, which were issued on 21 August 2020, the period of five business days referred to in section 708A(6)(a) of the Corporations Act be extended to 15 October 2020.

5.Pursuant to section 1322(4)(a) of the Corporations Act, it is declared that a notice under section 708A(5)(e) of the Corporations Act given to the ASX in respect of the 3,000,000 ordinary fully paid shares in the Plaintiff, which were issued on 21 August 2020, within the period provided for in paragraph 4 above be deemed to take effect as if it had been given to the ASX on 21 August 2020.

25 September 2020 issue of shares

6.Pursuant to section 1322(4)(d) of the Corporations Act, in respect of the 1,562,735 ordinary fully paid shares in the Plaintiff, which were issued on 25 September 2020, the period of five business days referred to in section 708A(6)(a) of the Corporations Act be extended to 15 October 2020.

7.Pursuant to section 1322(4)(a) of the Corporations Act, it is declared that a notice under section 708A(5)(e) of the Corporations Act given to the ASX in respect of the 1,562,735 ordinary fully paid shares in the Plaintiff, which were issued on 25 September 2020, within the period provided for in paragraph 7 above be deemed to take effect as if it had been given to the ASX on 25 September 2020.

General

8.A sealed copy of these orders is to be served on the ASIC as soon as reasonably practicable and upon service of these orders on ASIC, ASIC is to include these orders on its database.

9.A copy of these orders is to be given to each person to whom the shares in orders 1 to 7 were issued and as soon as reasonably practicable the plaintiff is to publish an announcement to ASX in which a copy of these orders is included.

10.For a period of 28 days from the date of publication of a copy of these orders on the ASX website, any person who claims to have suffered substantial injustice or is likely to suffer substantial injustice by the making of any or all of these orders has liberty to apply to vary or to discharge them within that period.

11.There be no order as to costs.

BY THE COURT

THE HONOURABLE JUSTICE J HILL

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG

Research Orderly to the Honourable Justice Hill

27 OCTOBER 2020