Aprais Pty Ltd (in liq); Twin v Deputy Commissioner of Taxation

Overview 1 This application is made under s 1322 of the Corporations Act 2001 (Cth). The plaintiffs seek relief in respect of the consequences of non-compliance with a Class Order CO 98/1418 and Instrument 2016/785. The Class Order and Instrument were issued by the Australian Securities and Investments Commission (ASIC) pursuant to s 341(1) of the Act. 2 The Class Order and the Instrument relevantly provide that, in certain circumstances, where a parent company enters into a cross-guarantee with its subsidiaries, those subsidiaries will be excused from having to prepare and lodge independent financial statements provided that the parent company prepares and lodges consolidated financial statements for the relevant group of companies. Here the plaintiffs intended to take the benefit of the Class Order and the Instrument but failed to satisfy the requisite conditions in order to do so. By this application, they seek to address their non-compliance so as to obtain the benefit of the Class Order and the Instrument.

Introduction 3 The first plaintiff, Diona Pty Ltd, is wholly owned by the second plaintiff, Calibre Group Pty Ltd. Calibre is the holding company of a group of approximately 30 companies. The group provides professional infrastructure and built environment solutions including asset management, engineering, geology, mining and management advisory services. On 16 November 2015, Calibre completed its acquisition of Diona, a company which specialises in the provision of electrical, gas, water and wastewater services to the utility sector throughout Australia. 4 ASIC has been notified of this application. ASIC's position is that it neither supports nor opposes the application. ASIC does not seek to be heard on the application. 5 The plaintiffs are represented by Mr Stack of counsel and Ashurst Australia. They rely on two affidavits of Mr Peter Massey, affirmed on 8 June 2022 and 15 September 2022 respectively. Mr Massey is the managing director and chief executive officer of the Calibre Group. Detailed written submissions have been provided. The plaintiffs consent to their application being determined on the papers. 6 During the financial year ending 30 June 2016, Calibre and Diona executed certain documentation on the basis of an understanding that Diona was entitled to the benefit of the relief provided for in the Class Order and the Instrument. Calibre and Diona conducted business on that basis thereafter. Calibre prepared and lodged consolidated financial statements for the Calibre Group, including Diona in the financial years ending 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019, 30 June 2020. However, it has become apparent that contrary to the understanding of Calibre and Diona, Diona has not fully complied with the requirements of the Class Order and the Instrument and, accordingly, is not entitled to the benefit of the relief afforded by those instruments. ASIC has informed Diona that it is unable to grant relief in respect of the non-compliance and invited Diona to either lodge independent financial statements or to make an application to the Court under s 1322 of the Act. The plaintiffs have opted to bring the present application as a result.

the class order and the instrument 7 The statutory regime for financial reporting requirements for certain entities, including for relevant purposes, large proprietary companies as defined in s 45A(3) of the Act, is in Part 2M.3 of the Act. Strict obligations are imposed in relation to the preparation and lodgement with ASIC of various financial statements: see ss 292(1)(c), 301(1), 314(1), 315(4) and 319(1) of the Act. 8 Part 2M.6 of the Act empowers ASIC to grant exemptions and modifications to the obligations imposed under Chapter 2M of the Act. Relevantly, s 341 of the Act empowers ASIC to make an order granting relief from those obligations to specified classes of company. 9 ASIC issued the Class Order under s 341(1) on 13 August 1998. The Class Order was available in circumstances where the parent company and its subsidiaries entered into a deed of cross-guarantee and where the parent company intends to prepare and lodge with ASIC consolidated financial statements for itself and its subsidiaries. 10 Relevantly, in order to obtain the relief available under the Class Order, the following obligations had to be satisfied: (a) the subsidiary must become a party to a deed of cross-guarantee through the execution of an assumption deed in the form of ASIC Pro Forma 27; (b) the parent company and/or the subsidiary must lodge with ASIC a Form 389, being a document entitled "Opt-in/change of holding entity notice of wholly-owned entity relieved from financial reporting obligations"; (c) the parent company and/or the subsidiary must lodge with ASIC the assumption deed; and (d) the parent company and/or the subsidiary must lodge with ASIC a solicitor's certificate relating to the relevant assumption deed, which confirms that the deed conforms with ASIC Pro Forma 27 and has been properly executed. 11 The Class Order was replaced by the Instrument, which was issued by ASIC on 17 December 2016. The Instrument is in similar terms to the Class Order. Clause 13 of the Instrument provides that the Class Order continues to apply in relation to the financial years before 1 January 2017. 12 The principal requirement of the Class Order and Instrument which must be satisfied is that the subsidiary must be a party to a relevant deed of cross-guarantee. The rationale for this is that the deed of cross-guarantee protects creditors and other stakeholders from any disadvantage that may arise from an inability to access the subsidiary's financial reports: Car Buyers Australia Pty Ltd v Australian Securities and Investments Commission [2020] FCA 599 at [24].

Principles relevant to section 1322(4) of the Corporations Act 13 Section 1322(4)-(6) relevantly provides that: "… (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. (5) An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence. (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. ..." 14 Section 1322 of the Act is remedial in nature: Re Wave Capital [2003] FCA 969; 47 ACSR 418 at [29]; Re Golden Gate Petroleum [2010] FCA 40; 77 ACSR 17 at [38]. As such, it is to be construed broadly and applied pragmatically, principally by reference to considerations of substance rather than form: see Weinstock v Beck [2013] HCA 14; 251 CLR 396 at [39]. 15 In Weinstock, French CJ observed, at [39], that s 1322 and related provisions: "… reflect a long-standing legislative recognition that mistakes will happen in corporate governance and that it is not in the public interest that the validity of decisions made in relation to corporations be unduly vulnerable to innocent errors which may be corrected without substantial injustice to third parties." 16 An application under s 1322(4)(d) involves in effect a two stage process, described as follows in Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; 72 ACSR 431 at [31] to [33]: …First, the court needs to determine whether, having regard to the circumstances of the case and the general objects of the CA 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 injustice has been or is likely to be caused to any person by the making of such an order. In dealing with the first consideration, general discretionary matters no doubt included factors touching upon the reasons for the need to extend time. Questions of deliberate strategy and inadvertence may fall for consideration. However, it should be noted that s 1322(4)(d) does not condition the exercise of the court's power on an applicant showing its conduct was due to inadvertence. In this regard, s 1322(4) may be contrasted with s 1325D under which the court may declare any act, document or matter not invalid by reason of contravention of a provision of Ch 6, 6A, 6B or 6C, where regard must be had to whether the contravention was caused by a person's inadvertence or mistake, not having been aware of the relevant fact or occurrence, or circumstances beyond the control of the person. In my view, it is clear that mere "inadvertence" is not the sole or a governing criterion by which the court may be moved to exercise its power under s 1322(4)(d), even though such a factor may be considered relevant. There is no doubt that s 1322 is intended to be exercised liberally, so as not to unreasonably stifle corporate and financial activity; that is to say, restrict such activity merely on technical grounds: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd (2001) 166 FLR 144, Giles JA (with whom Beazley JA agreed) at [74]; Re Insurance Australia Group Ltd (2003) 128 FCR 581 at [27] per Lindgren J; Re Wave Capital Ltd (2003) 21 ACLC 1 at 995, French J at [30]; Re MacMahon Holdings Ltd [2008] FCA 1079, McKerracher J at [21]. 17 Orders made remediating the consequences of non-compliance should generally be declaratory in form and identify that which is retrospectively excused: Re MB Vic Pty Ltd [2022] FCA 874 at [10]. 18 Standing to bring an application is conferred on an "interested person", which includes a person upon whom the relevant obligation was imposed: Oil Basins Ltd v Bass Strait Oil Company [2012] FCA 1122; 91 ACSR 700 at [66]. A person whose financial interests are or are likely to be adversely affected has standing: Aprais Pty Ltd (in liq); Twin v Deputy Commissioner of Taxation [2003] QSC 329; [2004] 1 Qd R 450 at [16]. 19 Section 1322(6) of the Act imposes some restrictions on the relief available under s 1322(4) of the Act. 20 Relevant for present purposes is the requirement in s 1322(6)(b), that the person who is relieved of civil liability for the contraventions or failure has acted honestly. This requirement directs attention to the nature and circumstances in which the non-compliance occurred and is concerned with the absence of dishonesty, and may include circumstances such as: (a) an inadvertence or a failure to turn one's mind to the relevant issue: Re QBiotics Ltd [2016] FCA 873 at [38]; (b) an active, but incorrect, consideration of a legal issue or a failure to consider the issue at all: Prime Life Corporation v Aevum Ltd [2005] NSWSC 269; 53 ACSR 283 at [8(19)]; or (c) a failure to understand or appreciate the significance of non-compliance: Re Spirit Energy Ltd [2012] FCA 1354 at [44]. 21 The requirement under s 1322(6)(c) - that no substantial injustice has been or is likely to be caused to any person - applies in every case. The Court is concerned with real and material prejudice. A degree of prejudice to a person may be outweighed if the weight of justice is overwhelmingly in favour of making the order: Re DAC Finance (NSW/Qld) Pty Ltd [2020] NSWSC 182 at [35].

facts giving rise to this application 22 On about 23 June 2010, Calibre entered into a deed of cross guarantee dated 23 June 2010 (Calibre Cross Guarantee), with its wholly owned subsidiaries. The Calibre Cross Guarantee was entered into in accordance with the terms of the Class Order and is in the same terms as the ASIC exemplar included in the Class Order and Instrument. Calibre lodged the Calibre Cross Guarantee with ASIC on 29 June 2010. Clause 5 of the Calibre Cross Guarantee provides that parties may be added to it upon the execution of an assumption deed. Over time, as Calibre acquired other companies, those companies became parties to the Calibre Cross Guarantee through the execution of various assumption deeds. 23 By June 2016, Diona and Newell Engineering Group Pty Ltd had become subsidiaries of Calibre. On 7 June 2016, Calibre, Diona and Newell entered into an assumption deed (the Diona Assumption Deed). The Diona Assumption Deed is in the same terms as the ASIC exemplar and accordingly Diona and Newell became parties to the Calibre Cross Guarantee. Calibre's legal counsel certified that the Assumption Deed was in the valid form and duly executed (the Certificate). Mr Reichler, a director of Diona and Newell, executed a solvency certificate. Mr Massey completed a "Form 389", the intended effect of which was to allow Diona to "opt in" for the relief afforded under the Class Order. The Form 389 was lodged with ASIC on 28 June 2016. 24 On 20 September 2016, Calibre lodged with ASIC the Annual Report for the Calibre Group for the financial year ending 30 June 2016. In its 2016 Annual Report, Calibre stated that on 16 November 2015, Calibre had acquired Diona for approximately $90 million. The following further information (the Diona Class Order Information) was included in the report: (a) the Calibre Group had the benefit of the Class Order; (b) the Calibre Group companies were parties to the Calibre Cross Guarantee under which each company guaranteed to each creditor payment in full of any debt; (c) the directors of Calibre believed that the Calibre Group companies to which the Class Order applied would, as a group, be able to meet any obligation or liability to which they were liable under the Calibre Cross Guarantee; and (d) Diona: (i) was a party to the Cross Guarantee; (ii) had the benefit of the Class Order/Instrument as applicable; and (iii) was relieved from the obligation to prepare and lodge an audited financial report. 25 On 3 October 2017, Calibre lodged with ASIC the Annual Report for the Calibre Group for the financial year ending 30 June 2017. That report included the Diona Class Order Information. 26 By 1 November 2017, in circumstances which Mr Massey is unable to recall, Calibre became aware that the Form 389 had not been processed by ASIC because (as it understood the situation) Diona had not lodged a copy of the Diona Assumption Deed and the Certificate under cover of Form CF06. Consequently, on 1 November 2017, Calibre's secretary completed a Form CF06, which attached a copy of the Diona Assumption Deed and the Certificate. The Form CF06 was accepted by ASIC on 3 November 2017. Mr Massey has deposed that he understood that by taking those steps, Diona had in effect remedied its default and that the late lodgement would not prevent Diona from having the benefit of the Class Order. 27 On 27 September 2018, Calibre lodged with ASIC the Annual Report for the Calibre Group for the financial year ending 30 June 2018. That report included the Diona Class Order Information. 28 On 7 October 2019, Calibre lodged with ASIC the Annual Report for the Calibre Group for the financial year ending 30 June 2019. That report included the Diona Class Order Information. 29 On 7 September 2020, Calibre lodged with ASIC the Annual Report for the Calibre Group for the financial year ending 30 June 2020. That report included the Diona Class Order Information. 30 On 28 October 2020, ASIC sent a letter informing Diona that it had not lodged its financial statements for the financial year ended 30 June 2019. In light of, amongst other things, the steps Diona had taken in November 2017, Calibre (and Diona) mistakenly concluded that ASIC had sent this letter in error and ignored it. On 30 March 2021, ASIC sent a further letter to Diona containing a notice under s 1274(11) of the Act in respect of Diona's failure to lodge its financial statements for the financial year ended 30 June 2019. Between 12 April 2021 and 20 October 2021 there were various communications between Calibre, Diona and ASIC in relation to this issue and the circumstances outlined above. 31 By 14 September 2021, Calibre lodged with ASIC the Annual Report for the Calibre Group for the financial year ending 30 June 2021. That report included the Diona Class Order Information. 32 On 27 October 2021, Calibre's secretary completed a further Form 389, which attached a copy of the Diona Assumption Deed and the Certificate. This version of Form 389 was lodged under the Instrument. The plaintiffs say that this was received by ASIC on 29 October 2021 but was not processed until 12 November 2021. 33 On 5 November 2021, Calibre and Diona applied to ASIC for relief in respect of their non-compliance with the terms of the Class Order. On 2 February 2022, ASIC wrote to Diona and attached another notice issued under s 1274(11) of the Act. That notice required Diona to lodge its financial statements and reports for the financial year ending 30 June 2020 and threatened legal proceedings in the event of non-compliance. 34 As mentioned above, these communications ultimately resulted in ASIC informing the plaintiffs that ASIC did not have the power to grant relief in respect of Diona's non-compliance and the plaintiffs instituted the present proceedings.

consideration 35 The plaintiffs rely on detailed written submissions which expose and explain the nature of Diona's failure to comply with the Class Order and Instrument. The plaintiffs accept that they have not complied with five of the relevant requirements. In broad terms, the non-compliance may be summarised as follows. 36 First, the plaintiffs failed to lodge with ASIC a copy of the Diona Assumption Deed and Certificate before 30 June 2016, despite the fact that those documents had been prepared and executed on 7 June 2016. Mr Massey has been frank in his evidence that he is now unable to explain how this failure occurred. Mr Massey's evidence also demonstrates that upon becoming aware of this failure, the plaintiffs attempted to rectify the position by lodging with ASIC on 3 November 2017 a Form CF06 attaching the relevant documents. 37 Secondly, it appears that the plaintiffs may have lodged the Form 389 some two days prematurely, that is, before the close of the financial year to which the Form 389 related. 38 Thirdly, the directors of Diona were required to, but failed to, reassess the advantages and disadvantages of Diona continuing as a party to the Calibre Cross Guarantee and taking the benefit of the relief available under the Class Order and Instrument (as applicable) on an annual basis, and pass resolutions accordingly. 39 Fourthly, prior to 30 June 2016, the directors of Diona were required to pass a resolution to the effect that Diona should claim the benefit of the Class Order and that that resolution continued to be operative. 40 Fifthly, Calibre's 2016 Annual Report failed to comply with the Class Order in that it did not include the details required to be included in respect of the parties added to the Calibre Cross Guarantee in the course of that financial year. 41 It is not necessary to outline the detail of non-compliance any further. Without detracting from the importance of compliance with the Class Order in any way, in the present case, the non-compliance is properly characterised as inadvertent and of a technical nature. The conduct of the plaintiffs does not disclose an attempt to gain an undue advantage from the relief sought or to avoid the obligations imposed by Chapter 2M of the Act. The evidence suggests that the plaintiffs either acted on the assumption that they were compliant with all aspects of the Class Order, or, upon realising that they collectively or singularly had failed, or may have failed to comply, sought to remedy that non-compliance proactively. It is unfortunate the initial communication from ASIC was ignored on the assumption it had been sent in error without further query being made, but that does not detract from my conclusion that, on balance, it is appropriate to grant relief. There is no evidence to suggest that the plaintiffs, or their officers acted dishonestly at any stage, nor is there any evidence that any substantial injustice has been, or is likely to be caused to any person. 42 The plaintiffs seek an extension of time to enable them to address the non-compliance that arises from their failure to attend to the administrative steps necessary for them to claim the benefit of the relevant relief within the stipulated time frames and/or in the requisite form. Orders extending the time for compliance in circumstances similar to those under consideration in the present case are clearly within the ambit of s 1322 of the Act. In respect of the financial year ending 30 June 2016, the plaintiffs seek an order extending the time for lodgement of the Diona Assumption Deed and Certificate to 4 November 2017, being the day after which the documents were lodged with ASIC. To make orders in this form is consistent with the relief granted under s 1322(4) of the Act: see, for example, Re MB Vic at [47] to [55]. I am satisfied it is appropriate to make orders substantially as sought in this regard. 43 The plaintiffs seek an order that the time for passing various directors' resolutions and lodging appropriate consolidated financial statements be extended to a date that is 21 days after the Court makes the relevant order granting relief. This is an orthodox approach to relief under s 1322(4) of the Act: see Re MB Vic at [40] to [46] and Re Flight Centre Technology Pty ltd [2022] NSWSC 367 at [48] to [54] respectively. I am satisfied it is appropriate on the evidence before me to make the orders as sought. 44 The plaintiffs seek an abridgment of time for the lodgement of the Diona Assumption Deed and the Certificate. The reason is that the Class Order required that the Form 389 be lodged with ASIC "within 4 months after the end of" the relevant financial year, and the plaintiffs appear to have lodged the form on 28 June 2016 - being two days before the designated date. Accordingly, the plaintiffs seek that the time for the lodgement be abridged. In Flight Centre Technology, similar orders were made abridging the time for the filing of a directors' resolution, which had been passed one day too early. I am satisfied it is appropriate to make the orders. 45 The plaintiffs seek relief under s 1322(4)(c) of the Act directed to relieving them and their current and former directors and officers from civil liability consequential on the failures to comply with the Class Order and Instrument. I am satisfied that it is appropriate to make orders substantially in the terms sought.

Conclusion 46 For the reasons I have given, I am satisfied that it is appropriate to grant relief substantially in the form sought by the plaintiffs and will make orders accordingly. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.