The 19 plaintiffs are shareholders in the defendant Sunbeam Victa Holdings Ltd. Sunbeam shares are listed on the Australian Stock Exchange. The plaintiffs are parties to 1,158 transfers each of 20 shares in Sunbeam which were registered on or about 24 May 1996. These proceedings were commenced on 23 May 1996, by a Summons which claimed first a declaration that upon the proper construction of the Australian Stock Exchange Listing Rules and of s.777 of the Corporations Law Sunbeam was obliged to register the transfers not later than 8 May 1996, secondly an order directing Sunbeam to register each transfer forthwith and thirdly "An order directing the defendant to record in its register that the effective date of such transfers was 8 May 1996". The transfers in fact were registered within a day of the commencement of the proceedings, and the matter now in dispute is whether the plaintiffs are entitled to a declaration that Sunbeam was obliged to register them not later than 8 May, and to an order rectifying the register.

I asked the plaintiffs' counsel whether there are any practical considerations which support intervention by the Court in this way, in view of the fact that the transfers were registered before the hearing. Counsel replied that the plaintiffs contend that they are entitled as of right to have the register put in proper form, that Sunbeam delayed registration and should not have the benefit of its own dilatoriness, that Sunbeam clearly knew it was bound to register and chose not to comply with its legal obligations, but that he cannot refer to any other considerations in terms of advantages to the plaintiffs' financial positions, or to their positions otherwise, which would support making the orders.

The nineteenth plaintiff Mr J.L. Thompson is in some way involved in the affairs of each of the other plaintiffs. The first plaintiff Peninsula Gold acquired 30,000 shares in Sunbeam about November 1993 at $1.75. On 15 April 1995 GUD Holdings Ltd served a Pt.A Statement relating to an offer by GUD to acquire all issued shares in Sunbeam which it did not hold. The consideration offered was 3 GUD shares for every 8 Sunbeam shares and the value assessed by GUD of its offer was $1.18 per Sunbeam share. The 1,158 transfers followed soon after on 18 April 1996 and it seems that, in some unexplained way, the decision to split Peninsula's holding in this way is a response to or related to GUD's takeover offer. The plaintiffs' evidence did not explain what the purpose of the transfers was. The price of the shares in each transfer is at the rate of $1.20 per share. Although only 19 plaintiffs and shareholders are involved, they are arranged in 1,158 different groups each of which has three, two or one members. It is notable that although the plaintiffs' evidence says that the price was $1.20 per share and the transfers would recite that that price was paid, there is no distinct evidence that it was paid, and it is obvious that this grossly artificial arrangement is directed at multiplying the number of shareholdings and that either the beneficial ownership of the shares was not altered or that if beneficial ownership in fact was altered, there is a close relationship of interest among the plaintiffs. It may be that the share transfers have succeeded in multiplying 1,158 times the number of documents which GUD must send out in respect of the 30,000 shares; or perhaps only 19 times. I have no insight into why the parcels contained 20 shares, not more or less, nor into why only 1,158 of the 6,859 possible combinations of one, two and three were brought into play.

Mr Thompson sent the transfers to Sunbeam's Share Registrar Ernst & Young Registry Services Pty Ltd on 19 April 1996 but they were not registered. It was unlawful to register them as they were insufficiently stamped. After litigation had been commenced in this Division on 30 April Sunbeam notified the plaintiffs of its reason for not registering share transfers, in terms of their being insufficiently stamped. Those proceedings were then dismissed. Mr Thompson caused the share transfers to be uplifted on 1 May, duly stamped and redelivered on the same day.

Australian Stock Exchange Listing Rule 3D(2) obliges a company to dispatch a certificate to the transferee within five business days after the day of lodgment of a registrable transfer. The last of the five business days relevant was 8 May 1996. Mr Thompson and his solicitor began to inquire about what was happening on 21 May 1996, and their solicitor Mr John Leslie was informed by Mr McCombe, a solicitor acting for Sunbeam, on the morning of 22 May that an application had been made to the Australian Stock Exchange for a waiver, and that the share transfers had not been registered.

There were further communications and attempts at communication on 23 May. In a conversation at about 3.25 that afternoon Mr McCombe gave an indication, in rather indefinite terms, that an appeal to the National Listing Committee had been refused and that if this was confirmed the Share Registrar would be asked to register the share transfers immediately. On the same afternoon he agreed to accept service.

Mr McCombe's evidence shows that on 6 May he prepared and sent to the Australian Stock Exchange by courier an application on behalf of Sunbeam for a waiver of Listing Rules in relation to the registration of the 1158 share transfers. On 10 May he received a message from the Stock Exchange which indicated that management had decided to refuse the application but that Sunbeam could appeal to the National Listing Committee. On 14 May Mr McCombe sent the Australian Stock Exchange a facsimile message stating that Sunbeam wished to appeal.

Sunbeam and its solicitors did not keep Mr Thompson and the plaintiffs informed while these events were in train. Some information was given by telephone to Mr Leslie on 22 May. Mr McCombe received some information on 23 May to the effect that the appeal had been refused; this information was not at first altogether definite but it was confirmed in a telephone conversation with Mr Daly, an officer of the Australian Stock Exchange at about 3.40pm. Mr McCombe then told the Share Registrar to proceed to register the transfers. The date of the certificates is 24 May which seems to show that they were registered the following day.

By s.777 of the Corporations Law the Court is given power to order compliance with business rules or Listing Rules of a Securities Exchange on the application of various persons, including a person aggrieved by the failure to comply. The power is conferred by subs.(1) and in my opinion is discretionary. By subs.(2) a Body Corporate such as Sunbeam who shares are listed "... shall be deemed to be under an obligation to comply with the listing rules ..." of the Securities Exchange. In this way the Listing Rules of the Australian Stock Exchange are enforceable on a wider basis than enforceability by the Stock Exchange and listed companies under their contractual relationship.

The rules of which Sunbeam sought waiver of compliance are Listing Rules 3D(2)(a)(i) and 3D(3B)(b). Listing Rule 3D(2)(a)(i) is syntactically not well constructed but its meaning is clear enough given the general heading of 3D: "Certificates, Transfers, Transmissions and Registers" and the context of a number of other rules which deal with allotments and transfers. This paragraph says:- "(2)(a)(i) To despatch to the transferee within 5 business days after the day of lodgement of a registrable transfer of securities of the company a certificate in respect of such securities and a balance certificate for any remainder, except in the case of a transfer in respect of pre reconstruction securities lodged with a company during the seven business days (but not including) the date on which the reconstruction becomes effective (Refer Listing Rule 3N(1)(h))."

"(b) (i) the company shall not prevent, delay or in any way interfere with the

registration of a paper-based transfer in registrable form of a security;

(ii) notwithstanding (i) above, a company may refuse to register a transfer

a. the company has a lien on the securities in accordance with

b. it is permitted to do so by Listing Rule 3N(1)(h);

c. it is required to do so in accordance with a law related to stamp

d. it is required to do so pursuant to a court order; or

e. the company has notified the Exchange of a law of a State,

Territory or the Commonwealth which may be contravened by

the registration of a transfer of a security from or into a holding

and the Exchange has authorised the company in writing to

(iii) notwithstanding (i) above, the company shall refuse to register a

transfer in registrable form where some or all of the securities the

subject of the transfer are reserved in favour of an offeror under a

a. the takeover offer is not, or is no longer, subject to a defeating

b. the transfer is a transfer to, or at the direction of, that offeror

(iv) the company shall give to the lodging party written notice of the refusal

to register a transfer and the precise reasons therefor within 5 business

days after the date on which the transfer was lodged with the company

if the company exercises its rights under paragraphs (ii) and (iii) above."

The Australian Stock Exchange Listing Rules are not drafted as a legislative instrument. They are altered from time to time according to whatever it seems to Australian Stock Exchange Ltd to be appropriate to require to be complied with by the persons who in practical terms are under its control, namely stockbrokers and listed companies. The Listing Rules necessarily have a large practical effect on the conduct and rights of persons who deal with stockbrokers and listed companies. Practices in legislative drafting have been shaped by long experience of approaches taken by courts to construction of legislation; the Listing Rules have not been shaped in this way, as is evident from reading them.

Counsel for both sides of the record took me to Listing Rules printed in Butterworths' Service "Australian Corporation Law - Vol.3 Principles and Practice." In strictness the terms of the Listing Rules are a suitable subject for proof by evidence, but they have very frequently been referred to by courts without being proved in a formal way and in my view it must now be taken that the manner in which Listing Rules are made and published by Australian Stock Exchange and the manner in which alterations to them are published and circulated, in a familiar loose-leaf binder, are well known to courts and constitute notorious public facts of which judicial notice should be taken. The issue about the Listing Rules in this case would not be resolved by some formal process in which I declined to look at the rules until they had been produced by an officer of the Australian Stock Exchange who averred, with supporting references to minutes, that the whole volume had been adopted by the Stock Exchange and represented the net result of all alterations. Rather the issue is whether, as a matter of construction of the content of the loose leaf volume circulated by the Stock Exchange and reproduced in Butterworths' service, the page headed "Foreword" and the Definitions form part of the Listing Rules which are given effect by s.777. The plaintiffs' counsel's contention was that the material in the Foreword comprises editorial comments, but is not intended to be part of the Listing Rules, and that the Listing Rules are found in the numbered sections which follow. There certainly are expressions in the Foreword which seemed to distinguish the Foreword from the Listing Rules. The word "Foreword" itself seems to suggest an element of separation. Some of the material in the Foreword could not be a rule which could be enforced; for example there is historical material about the formation of Australian Stock Exchange Ltd, comments about the continuation of companies' common law and statutory obligations and about the consequences of not complying with the rules in terms of removal from the official list, and the comment "As such the Listing Rules are the strongest elements in the regulation of listed companies in Australia and have received judicial notice and recognition. (See Corporations Law)" Then there is an invitation to companies inquiring about admittance to consult their stockbrokers. The last two paragraphs however take a somewhat different line and they are in these terms:

"Companies desiring to be admitted to the Official List of Australian Stock Exchange Ltd and to secure Official Quotation of their securities shall make application to the Exchange on the form set out in the Appendices to the Listing Rules.

The Exchange in its absolute discretion (without qualification whatsoever) may accept or reject any application for admission to the Official List and has absolute discretion in administering the Listing Rules and in so doing looks to companies to comply with the spirit as well as the letter of those Listing Rules. The Exchange may at any time and from time to time in its absolute discretion waive compliance by a company with any Rule or part of a Rule contained in these Listing Rules. The grant of any waiver to these Listing Rules will be advised by the Home Branch of the company to the Australian Securities Commission."

Although at other points in the Foreword language is used which seems to distinguish Listing Rules from the Foreword, these last two paragraphs contain provisions which, if they are to be effective at all, are effective in their operation with and as part of the Listing Rules. The material within the last paragraph of the Foreword is interrelated in that an absolute discretion in administering the Listing Rules and the requirement of compliance with the spirit as well as the letter are closely related to an absolute discretion to waive compliance.

On a whole view of the material issued by Australian Stock Exchange it is in my opinion clear that the Listing Rules in numbered and lettered sections must be read with the Foreword, and vice versa. I see no good reason for endeavouring to read either in isolation from the other. Indeed it would not be possible to do so, and the numbered and lettered sections would have a radically different meaning if they were to be read without regard to the overriding statements relating to absolute discretion and waiver of compliance.

The plaintiffs' counsel made a number of observations which would be rather compelling if the Foreword and in particular the references in it to discretion and waiver were not part of the Listing Rules which are enforcible under s.777.

I do not accept the characterisation of the Foreword as editorial comment by the Australian Stock Exchange. The parts of the Foreword which deal with discretion and waiver are basal to the working of the whole system in the remaining parts of the Listing Rules. So too is the reference to application in the spirit as well as in the letter. Without them what follows would be altogether different in its effect.

There have been references to the Foreword in the context of the Listing Rules in reported judgments. See A.F. & M.F. Pty Ltd v. Aveling [1994] FCA 1256; 14 ACSR 499 at 524 (Heerey J) and Harman v. Energy Research Group Australia Ltd (1985) 9 ACLR 897 at 901 (Brinsden J). These relate to Listing Rules at various earlier times. There does not appear to have been an explicit challenge to the Foreword as part of the Listing Rules.

The plaintiffs' counsel contended that the power in s.1094(2) extends to making an order for rectification of the register so as to give effect to the transfers as at an earlier date than 24 May. The power in subs.(2) is indeed wide, expressed to be a power to "make such other order as it thinks just and reasonable" and in my opinion it extends, in an appropriate case, to an order relating registration of a transfer back to some earlier time than its actual date; but such an order like any other order under subs.(b)(2) must be justified by the "just and reasonable" test, and must be supported by some positive ground for deciding to make it.

Counsel referred me to observations of Rolfe J in Roberts v. Coussens (1991) 9 ACLC 1403 at 1416 relating to the onus of proof of just cause. These observations are inconclusive and the disposition of the present application could not be determined by the onus of proof. The Listing Rules, taken as a whole, confer on persons affected, and in the present case conferred on Sunbeam an opportunity to apply for waiver which had the same legitimacy as any other right, requirement or opportunity under the Listing Rules.

The claim for rectification of the share register in claim 3 of the Summons is a claim for exercise of the power of the Court to which s.216H of the Corporations Law relates. This section commenced on 9 December 1995. Section 216H assumes the existence of a jurisdiction in the Court to rectify a share register; and the existence of such jurisdiction as part of the general power of courts of equity is well established: see In Re London, Hamburg, and Continental Exchange (1867) LR 2 Ch. App. 431 at 441 (Lord Cairns LJ), Grant v. John Grant & Sons Pty Ltd [1950] HCA 54; (1950) 82 CLR 1 at 51 (Fullagar J) and Federal Commissioner of Taxation v. Patcorp Investments Ltd [1976] HCA 67; (1967) 140 CLR 247 at 303. Counsel informed me that a search of parliamentary material does not throw any light on why s.216H, unlike the former s.212, does not purport to confer jurisdiction but assumes its existence. However the assumption is well founded. The cases last cited show that a rectification decree of a Court of Equity can establish a position as of a past date according to which the rights of persons affected must be governed.

In my opinion the same Listing Rules which require registration within 5 days and notification of grounds of refusal also confer an opportunity to seek waiver which it was altogether legitimate of Sunbeam to exercise, subject always to the obligation to comply if waiver should not be granted. Sunbeam exercised, fully, its right to seek waiver, and then proceeded forthwith to comply when waiver was not available. Sunbeam was confronted with very strange behaviour by Peninsula and its numerous combinations of transferees and, while to many minds it would seem that it was not useful to resist this behaviour, it was fully within the range of reasonable consideration to decide to seek a waiver from acting on it. If some practical advantage which the Court ought to protect flows to the plaintiffs from the course which they have taken it has not been revealed. If some practical disadvantage has been imposed on the plaintiffs by the delay in registration that too has not been revealed. The relief sought is discretionary, yet I am asked to grant it without being told any substantial reason why the grant of it would improve the positions of the plaintiffs. Any real grievances of the plaintiffs disappeared in substance with the decision of the Stock Exchange National Listing Committee, which appears to have taken place on or about the day on which the Summons was issued, and with registration of the transfers on the following day. From that time there was no practical advantage to be gained from the continuation of the proceedings.

I will give separate consideration to questions of costs.