The evidence
7 Carlos Fernicola provided an affidavit in support of the application. Mr Fernicola is the chairman and company secretary of Superior Resources. The company is a Brisbane based explorer for copper-lead-zinc and gold. Fully paid ordinary shares in the company are quoted on ASX. It has approximately 745 million shares on issue held by approximately 830 shareholders.
8 On 31 July 2019 Superior Resources announced a placement of 60,750,000 shares to investors to whom disclosure under Part 6D.2 of the Corporations Act was not required because they came within s 708(8) of the Act, which concerns what are often called 'sophisticated investors'. A cleansing notice was announced on ASX on the same day. However the placement, which ended up involving the issue of 57,375,000 shares, did not occur until 15 August 2019. No cleansing notice was issued within five business days after that date. So the cleansing notice that had been issued did not comply with s 708A(6) for the purposes of sale of the securities that were issued on 15 August.
9 Mr Fernicola cannot specifically recall why no cleansing notice was issued within the necessary five business day window. But he has deposed to his belief that it was because he mistakenly thought that the cleansing notice issued on 31 July 2019, the day of the announcement, was effective. He has, however, admitted that he was responsible for the necessary announcements for a previous placement by Superior Resources in May 2017, in which the shares were issued on 15 May 2017 and a cleansing notice was issued on 16 May 2017. So he cannot explain why, in the case of the more recent placement, a cleansing notice was issued on the day of the announcement, rather than within five business days after the day of the issue. The cleansing notice that was issued on 31 July 2019 said that the company had already issued the shares. That was incorrect and suggests inattention to the contents of the notice.
10 Mr Fernicola has reviewed the company's records and is not aware of any information which had, as at August 2019, been excluded from continuous disclosure announcements in accordance with ASX's continuous disclosure rules, and which investors and their professional advisers would reasonably require for the purpose of making an informed assessment of Superior Resources' assets and liabilities and other relevant matters. In other words, if a cleansing notice had been issued in the five business day window after the issue of shares in August 2019, it would not have contained any 'excluded information' that would have been required to be included in the notice by operation of s 708A(5), s 708A(6), s 708A(7) and s 708A(8). The cleansing notice that was issued on 31 July 2019 did not set out any excluded information.
11 The omission to lodge an effective cleansing notice permitting secondary sales of the shares issued in August 2019 was discovered very recently, as a result of due diligence in relation to a capital raising which is the subject of a trading halt which the company entered on 13 May 2020. That capital raising is proposed to include a placement and an entitlement issue.
12 At about 3.35 pm on Friday, 15 May 2020 Mr Fernicola and Peter Hwang, Superior Resources' managing director, received a telephone call from Julian Atkinson, a solicitor advising the company on the proposed capital raising. Mr Atkinson advised them that his due diligence in connection with the capital raising had revealed that because there had only been a cleansing notice on 31 July 2019, before the issue of the shares in August 2019, those shares had not been 'cleansed' so that it was not lawful to offer them for sale. Mr Atkinson advised the company to apply to the court for orders validating any sales of the shares and relieving shareholders who had sold of liability. Mr Fernicola has reviewed the company's share register and identified that some of the persons who took shares in the placement of August 2019 are no longer shareholders, which suggests that they have indeed sold some of those shares.
13 On instructions from Mr Fernicola and Mr Hwang, Mr Atkinson immediately notified ASX of the problem, and shares in Superior Resources have been suspended from trading since then. The court was notified of the application on the same day and the application was lodged on Monday 18 May 2020, the next business day.
14 Superior Resources intends, prior to 10.00 am on 20 May 2020, to issue a prospectus in relation to the entitlement issue and to announce the proposed capital raising, and to have the suspension of trading in its shares lifted with effect from 10.00 am on that day.
15 Mr Fernicola's evidence, which I accept, is that the omission to issue a cleansing notice within the five business day window after 15 August 2019 was an honest mistake about the lodgement timeframe which happened because he mistakenly thought that the cleansing notice issued on 31 July 2019 meant that secondary sales could lawfully occur. Some 12,375,000 shares from the placement of August 2019 have been transferred since they were issued.