respondent. 1) Refused the appellant leave to file a further amended notice of appeal; 2) Dismissed the appeal with costs.
Key principles
Section 252D(2) of the Corporations Act requires that a meeting called by members be called "in the same way - so far as is possible - in which meetings of the scheme's members...
A failure to give the prescribed 21 days' notice to some members is a procedural irregularity (a deficiency of notice or time within s 1322(1)(b)(ii)), but such a procedural...
Service of meeting notices on the responsible entity's directors may be effected by addressing the parcel to "the directors" at the directors' last known place of business; where...
An explanatory memorandum prepared by persons calling a meeting is not subject to the same duty of full, impartial disclosure as a responsible entity's statement; mere silence as...
Issues before the court
Whether the notice calling the meeting under s 252D was invalid because it failed to identify the members calling the meeting.
Whether the failure to give 21 days' notice to 25% of members (and no notice to three members) was a substantive defect or a procedural irregularity...
Plain English Summary
Primary arranged a unitholders' meeting to remove Aurora as responsible entity but sent a notice that did not identify the unitholders on whose behalf the meeting was called, and used an old register so many members received less than 21 days' notice. The Court of Appeal held the failure to identify the convenors made the notice invalid and was a substantive defect that voided the meeting. The shorter notice to some members was a procedural defect but did not, on the evidence, cause substantial injustice. Notices addressed to 'the directors' at Aurora's last known business address were held to be effective; the explanatory memorandum was not misleading by omission. The appeal was dismissed and Primary's application to amend was refused.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Whether notices were properly given to the responsible entity's directors and to the auditor within the statutory period, and whether any defect was...
Whether the explanatory memorandum was misleading or deceptive by omission because it did not disclose that certain unitholders were acting in...
Cited legislation
6 cited instruments linked from this judgment.
Deep Dive
2,059 words · generated 16/07/2026
What happened
This dispute arises from an attempt by certain unitholders of the Aurora Absolute Return Fund (ABW) to remove Aurora Funds Management Limited (Aurora) as responsible entity and to replace it with Primary Securities Limited (Primary). Primary, acting as agent for unidentified unitholders who purportedly held over 5% of the votes, caused a notice of meeting and an explanatory memorandum to be mailed to unitholders seeking an extraordinary/special resolution to remove Aurora. The meeting was fixed for 15 January 2019.
Key facts:
Primary used an out‑of‑date (September 2016) register for the first mailout on 21 December 2018; when Aurora provided its current register on 28 December 2018 a second mailout to 92 unitholders was made (see White JA [75], [82]-[84]).
As a result, about 75% of members received the statutory 21 days' notice, roughly 25% received only 15 days' notice, and three members received no notice (White JA [118], [84]).
The notice did not identify by name the unitholders on whose behalf Primary called the meeting; it was signed by Primary's company secretary as agent for members who between them held >5% (White JA [54], [60], [130]-[141]).
Aurora became aware of the meeting on about 7 January 2019 and announced to the market its concerns and advised members not to attend (White JA [88]).
The meeting proceeded on 15 January 2019; resolutions purportedly removing Aurora were passed with 90.8% of votes cast at the meeting, representing around 42.45% of total units (White JA [98]).
Aurora sought declarations the meeting and resolutions were invalid; Rees J declared them invalid. Primary appealed to the NSW Court of Appeal. The Court of Appeal dismissed the appeal on 23 September 2020 and refused Primary leave to amend (White JA; Bell P and Leeming JA agreeing).
The appeal involved four core issues:
Whether s 252D(2) import an obligation to identify the members calling the meeting on the notice.
Whether the shortfall in notice (25% of members getting only 15 days) was a substantive defect or merely a procedural irregularity under s 1322, and if procedural whether it caused substantial injustice.
Whether notices were properly given to Aurora's directors and its auditor within the required period and whether any failure was prejudicial.
Whether the explanatory memorandum was misleading or deceptive by omission because it did not disclose that several unitholders were acting concertedly to remove Aurora.
Why the court decided this way
The Court of Appeal (White JA delivering reasons; Bell P and Leeming JA agreeing) focused first on statutory construction of s 252D(2) read against the surrounding Pt 2G.4 provisions and common law requirements for meeting notices. The key reasoning strands were:
Statutory benchmark and common law: s 252D(2) requires a meeting called by members be called "in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity" (s 252D quoted at White JA [76]). Where a meeting is called by the responsible entity under s 252B the responsible entity's role is known; consequently, so far as possible a member‑called meeting should be called in a comparable way, which includes identifying who has called the meeting. The Court imported the common law practice that notices should indicate the authority on which they are issued (White JA [135]-[141]). The consequence was that the notice without named convenors prevented verification of entitlement and was invalid (White JA [141]).
Distinguishing substantive defect from procedural irregularity: The Court accepted the failure to give 21 days' notice to about 25% of members and the failure to mail to three members were defects in notice/time and therefore procedural irregularities under s 1322(1)(b)(ii) (White JA [13], [141], [152]-[154]). However, s 1322(2) requires a causal link between the irregularity and substantial injustice before invalidating a proceeding. The Court reviewed the primary judge's reasons for finding substantial injustice and concluded on the evidence there was no proof the deficient notice caused or may cause substantial injustice: there was no evidence that the unitholders given short notice would have acted differently or that Aurora would have become aware earlier had full notice been received (White JA [146]-[154], [23]-[25]).
Notices to directors and auditor: Primary adduced evidence (mail‑merge records and the emails sent to staff) that the first mailout included "Aurora" and an instruction to send to "The Directors" and Grant Thornton (White JA [103]). The Court accepted that addressing to "the directors" at the last known place of business satisfied s 252G(1)(b) and the Acts Interpretation Act postal presumption applied; the auditor's delayed receipt was explained by a mis‑addressing and there was no evidence of prejudice (White JA [103], [118], [124]-[136]).
Explanatory memorandum and misleading‑by‑omission claim: Aurora's complaint was that Primary, who styled itself as independent, failed to disclose that a voting bloc of some 36.5% was acting concertedly to remove Aurora. The Court held the evidence did not establish that Primary knew or actually suspected such concerted action, and, in any event, unitholders would not reasonably expect an advocacy explanatory memorandum from proponents to disclose mere suspicions, particularly about alleged illegal behaviour; the EM was not misleading by omission (White JA [165]-[172]).
Finally, Primary sought leave to amend its notice of appeal to seek validation under s 1322(4). The Court refused leave because Primary had not run that case below, the trial would have been conducted differently (including possible challenges to credibility), and the s 1322(4) inquiry is wider than the s 1322(2) inquiry, so leave would substantially widen the inquiry and could not be permitted at this stage (White JA [177]-[185]).
Before and after state of the law
Before:
Pt 2G.4 (ss 252B, 252D etc.) provided textual directions for calling meetings of members of registered schemes but did not expressly state whether member‑convenors must be identified on a notice when an agent calls a meeting under s 252D.
Common law authorities (e.g. King v Fulton) and practice literature had long stated notices should indicate on whose authority they are issued.
After this decision:
The Court of Appeal made clear that s 252D(2) should be read to import the common law requirement that a notice clearly indicate who is calling a meeting so that entitlement can be verified; an anonymous convenor notice is invalid (White JA [135]-[141]).
It reaffirmed the operation of s 1322(2) as protecting proceedings from invalidation for procedural irregularities absent a showing of substantial injustice; deliberate non‑compliance does not automatically convert a procedural irregularity into invalidity, causation of substantial injustice must be proved (White JA [141], [146]-[154]).
The decision clarifies the practical operation of service rules for directors (addressing to 'the directors' at last known place of business is acceptable under the Acts Interpretation Act and s 252G), and limits the disclosure obligations of proponents' explanatory memoranda to matters a reasonable member would expect, not to unproven suspicions (White JA [103], [171]).
This case thus aligns statutory construction with established meeting law practice: identification of the convenors is essential where an agent calls a meeting under s 252D.
Key passages with plain-English translation
Passage (White JA [76]): "The meeting must be called in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity."
Translation: When members call a meeting under s 252D, they must do as closely as they reasonably can what the responsible entity would have to do when it calls a meeting.
Passage (White JA [141]): "Having regard to the provisions of Part 2G.4 ... the reference in section 252D(2) ... captures the mandatory requirement that the member identify themselves ... The notice issued by Primary as agent for unidentified members had the result that the validity of the notice could not be verified ...".
Translation: Reading the statute and the rules together, the Court concluded that the notice had to tell people who was asking for the meeting; because it did not, nobody could check whether the people claiming to call the meeting had the right to do so, so the notice failed.
Passage (White JA [148]-[154] summarized): The Court's approach to s 1322(2):
Translation: If the only problem is a procedural one like late or missing notice, the meeting is not automatically void. The Court will only void it if the irregularity caused or may cause serious unfairness; in this case there was no proof of such unfairness resulting from the shorter notice to some members.
Passage (White JA [171]): "Unitholders could not reasonably expect Primary ... to disclose in the explanatory memorandum matters of suspicion..."
Translation: Members would not reasonably expect the proponent's advocacy leaflet to set out mere rumours or suspicions about other members' conduct; so failing to include such suspicions does not make the leaflet misleading.
What fact patterns trigger this precedent
This judgment is engaged where:
An agent or alternative entity calls a meeting under s 252D on behalf of unitholders and the notice does not identify the actual unitholders who authorised the call.
A mailout uses an outdated register resulting in some members receiving less than the statutory minimum notice.
A party disputes whether notices to directors or auditors have been properly given under s 252G and whether any misaddressing produced prejudice.
A proponent's explanatory memorandum is challenged as misleading by omission for not disclosing alleged concerted actions or control‑events by certain members.
Practical triggers:
Any member‑called meeting where the convenors are masked by agent signatures.
Cases where the convenience of timing (e.g., calling meetings around holidays) produces a deliberate but predictable shortfall in notice.
Allegations of coordinated block voting where the proponents' advocacy material is silent about suspected control events.
The principal preventive lesson for practitioners: if you call a meeting under s 252D, identify the convenors (or be clear about agency and names) to avoid invalidity; if using a register, ensure it is current to secure statutory notice periods.
How later courts have treated it
This deep dive is confined to the judgment itself and the materials before the Court of Appeal. The decision is a Court of Appeal authority in NSW and thus persuasive in other Australian jurisdictions; it establishes that s 252D(2) imports an identification requirement consistent with the common law. Specific subsequent citations or treatments by later courts are not contained in the judgment record reviewed here. Users should search more recent databases for how this decision has been cited or applied subsequently.
Still-open questions
Exact scope of identification requirement: The Court requires identification of the members calling the meeting, but it left unanswered precisely how much identification suffices (e.g., must the notice name each member or is a description such as "acting on behalf of Mr X and Co" adequate?). The judgment suggests naming is required for verification, but boundary cases may remain (see White JA [141], [136]).
Agency wording and who signs: The judgment accepted that Primary's company secretary signed as agent for members, but it noted possible ambiguity whether the authority was to the individual secretary or to Primary; the precise formalities that satisfy s 252D(2) when an agent signs were not exhaustively delineated (White JA [60], [130]).
Interaction with privacy and commercial confidentiality: Identification may conflict with privacy or confidentiality concerns of convenors; the judgment does not explore whether limited disclosure mechanisms (confidential disclosure to the responsible entity or to auditors/regulators) could satisfy verification without public naming.
s 1322(4) validation at appellate stage: The Court refused leave to advance a validation argument on appeal where it had not been run at trial; future litigants may test whether, in other circumstances, appellate courts will permit s 1322(4) validation material to be first raised on appeal.
Comparative treatment in other jurisdictions: The decision is authoritative in NSW; how other Australian courts will treat the identification principle in s 252D(2) (or analogous municipal company provisions) awaits further appellate consideration.
Practical consequence: advisers calling or defending member‑called meetings should ensure convenor identity is clearly stated and that registers used for mailouts are current; if a procedural defect occurs, parties must adduce evidence linking the defect to actual or likely substantial injustice under s 1322(2), generalised assertions of unfairness will be insufficient.
Catchwords
87 ACSR 672
Bisan v Cellante [2002] VSC 430[2011] FCA 1193
Re Broadway Motors Holdings Pty Ltd (in liq) (1986) 6 NSWLR 45
Re Carlton Football Club Limited [2004] VSC 379
Judgment (8 paragraphs)
[1]
Background facts
ABW is a listed managed investment scheme of which Aurora is the responsible entity. ABW's sole investment is in another managed investment scheme, Aurora Fortitude Absolute Return Fund ("AFARF") of which Aurora is also the responsible entity. AFARF is not a listed scheme. In about April 2017 Aurora caused AFARF to buy shares in Molopo Energy Ltd ("Molopo"). That investment did not go smoothly. Aurora became embroiled in a series of applications to the Takeovers Panel. The listing of shares in Molopo was suspended and Aurora was not able to dispose of the shares (J [8]). In the financial years ended 30 June 2017 and 30 June 2018, ABW and AFARF reported losses largely attributable to the problematic investment in Molopo (J [8]).
On 30 May 2017 the Takeovers Panel made a declaration of unacceptable circumstances in relation to Molopo. On 14 June 2017 it ordered that Aurora's shares in Molopo be vested in the Commonwealth for the purposes of sale.
In September 2016 Mr Rigoni had obtained a copy of the register of unitholders in ABW (J [19]).
In June 2017 Mr Staermose, and in September 2017, Mr Staermose's company, Wonfair acquired units in ABW (J [10] and [11]).
On 6 October 2017 Mr Staermose sent an email to Aurora's then registry services provider, Registry Direct, requesting a copy of the register of members of ABW. Mr Staermose stated that his purpose of seeking a copy of the register of members was to understand who became a member and who ceased to be a member and when. He stated that his purpose was not for any of the prescribed purposes defined by Corporations Regulation 2001 (Cth) reg 2C.1.03.
Section 173 of the Corporations Act provides that a registered scheme must allow a member of the scheme to inspect the register of members without charge and must give the person a copy of the register or a part of it within seven days if the person makes application in accordance with s 173(3A) and pays any fee (up to the prescribed amount) as might be required (s 173(1)-(3)). For an application to be made in accordance with s 173(3A) the application must state each purpose for which the person is accessing the copy and none of those purposes is to be a prescribed purpose.
Aurora's managing director, Mr John Patton, did not believe that Mr Staermose's request accurately stated his purpose. Mr Patton made inquiries into the shareholdings in Wonfair and the register of unitholders in ABW. He ascertained that if Mr Staermose's and Wonfair's holding of units in ABW were aggregated with unitholdings of companies that held redeemable preference shares in Wonfair, the collective holdings would amount to approximately 7.8 per cent which would trigger an obligation to provide a substantial unitholder notice if the parties were associates.
Mr Patton caused notices to be sent pursuant to s 672A of the Corporations Act to Mr Staermose, Wonfair, a Mr Chor Leng Tan and a company called Solano Investments Pty Llc ("Solano") who had made investments in ABW. No responses were received from Mr Tan or Solano. Mr Staermose and Wonfair refused to respond to the notices.
Between October 2017 and 3 July 2018 the collective unitholdings of Mr Staermose and Wonfair increased. By 10 May 2018 their voting interests had climbed to 19.99 per cent (substantial unitholder notices were lodged). On 3 July 2018 Mr Tan lodged a substantial unitholder notice recording unitholdings in ABW of 5.23 per cent.
On 13 October 2017 Aurora declined Mr Staermose's request for a copy of the ABW register. Aurora asserted that Mr Staermose's stated purpose was imprecise and vague and that the requirement of s 173 that he state each purpose was not satisfied. Aurora also said that there was a possibility that businesses with which Mr Staermose was associated might make unsolicited offers targeted to ABW unitholders to acquire their units (which would be a prescribed purpose). It also expressed concerns that substantial unitholding notices had not been lodged and that Mr Staermose might have engaged in various contraventions of the Corporations Act which could be facilitated by the provision of the register (J [33]).
On 31 August 2018 Mr Staermose served a further request for a copy of the ABW register (J [38]). On this occasion he stated that he wished to obtain a copy of the register "... in order to write to unit holders in relation to a unit holder meeting".
Aurora did not respond to the notice. The primary judge inferred that this was because it continued to hold the views expressed in its letter of 13 October 2017 (J [38]).
After Mr Staermose had complained to ASIC that he had not been afforded access to the register, Aurora gave instructions to Boardroom (which had assumed responsibility to maintain Aurora's register) to allow Mr Staermose to inspect the register but not to take a copy (J [48]). On 12 October 2018 Mr Staermose inspected the register.
On 15 October 2018 Mr Staermose wrote to Aurora pursuant to s 252B of the Corporations Act requesting that Aurora call a meeting of members of ABW to consider resolutions for the removal of Aurora as responsible entity and its replacement by a company called Millinium Capital Managers Limited or, if the first resolution were not passed, that the fund be wound up.
Later that day Mr Staermose advised Mr Patton that he did not wish to press the request (J [44]).
On 16 October 2018 a Mr Andrew Purcell, whom the primary judge said acted as Mr Staermose's agent (J [19]), telephoned Mr Garton Smith of Primary and they spoke briefly about ABW. Mr Purcell sent an email to Mr Garton Smith on 16 October 2018 inquiring whether Mr Garton Smith's firm might be able to assist with a proposal to call a meeting to seek the removal of Aurora as responsible entity of ABW. He said:
"A significant number of unit holders in ABW were dissatisfied with Aurora's performance and lack of communication and therefore want to call a meeting to seek the removal of Aurora as [responsible entity]. I have been asked by one of these unitholders to help him find a replacement [responsible entity]." (J [46])
The primary judge found (J [47]):
"On 17 October 2018, Mr Garton Smith asked which of the top 20 unitholders in ABW wanted to replace Aurora, and Mr Purcell replied: (emphasis added)
In confidence, the first two names on the top 20 list [Mr Staermose and Wonfair] want to see the [responsible entity] replaced and it is believe > 40% of the register would be interested in this motion being brought.
Mr Garton Smith and Mr Purcell spoke later that evening to clarify the identity of the first two unitholders. Mr Garton Smith understood that Mr Purcell was representing Mr Staermose but also, in part, himself, and that Mr Purcell was a member of another fund. It would appear that the conversation traversed Mr Stermose's failed requests for a copy of the register as, after the conversation Mr Garton Smith asked for a copy of those requests. On 20 October 2018, Mr Purcell forwarded Mr Staermose and Wonfair's requests for the register."
The primary judge found that also on 17 October 2018 Mr Staermose sent unsolicited emails to other unitholders of ABW to enlist their support in replacing Aurora (J [48]).
On 29 October 2018 Primary sent a request to Boardroom for a copy of ABW's register. It advised that the register was required for the purpose of communicating with members in relation to a proposal to replace Aurora. Boardroom did not pass on that request to Aurora. The primary judge found that Mr Patton did not obtain a copy of the request until 13 November 2018. He did nothing about it (J [50] and [51]). Mr Garton Smith of Primary complained to ASIC about the lack of response to its request for the register. On 29 November 2018 Mr Purcell told Mr Garton Smith that "it's difficult keeping everyone committed to this path given how little progress we have made to date". The primary judge inferred that Mr Staermose was working together with other members who had all agreed to work towards removing Aurora (J [54]).
In his email of 29 November 2018 to Mr Garton Smith, Mr Purcell considered what steps Aurora might take to frustrate the attempt to call a meeting of creditors and postulated the following course:
"What do you think about playing a little dirty ourselves and putting the ball in their court to have to sue us? For example, why don't we just send out a meeting notice to the names on the ABW register we have from Tim's last inspection? It's out of date, presumably, but so what? Nearly all the selling since then has been to accounts where we know the addresses of the owners. Aurora would get a nasty shock if we sent out a Notice of EGM thinking that no one has the register. See what they do then. If they mount a legal challenge then this is when we would state in our defence that we had no choice since they wouldn't hand over the register." (J [55])
The primary judge inferred that by 29 November 2018 Mr Rigoni had provided the register he had obtained from Aurora in September 2016 to Mr Staermose (J [55]).
The course suggested by Mr Purcell was implemented.
Mr Garton Smith prepared a report to the board of Primary proposing that Primary convene a meeting to be appointed as responsible entity for ABW. The primary judge found that by the time of this report, Mr Garton Smith apprehended that Mr Purcell was representing more than Mr Staermose and Wonfair (J [56]). Mr Garton Smith proposed that Primary proceed on the basis of a September 2016 register. He proposed a strategy that:
"Some investors holding 5% or more have authorised Primary to convene a meeting to amend the Constitution and to seek the replacement of the responsible entity of AARF. The meeting documents will be sent out just before Christmas.
...
If there are any difficulties in relation to the register we are using, then at some point it is likely that a current register will be produced." (J [57]-[58])
The primary judge found (at [59]):
"Given that Primary had, by now, access to the September 2016 register, it could have actioned this strategy immediately rather than wait another four weeks until 'just before Christmas'."
In other words, the primary judge was satisfied that Primary deliberately delayed calling a meeting of members until just before Christmas.
In the first two weeks of December 2018 both Primary and Mr Staermose made further complaints to ASIC about Aurora's failure to call a meeting of unitholders. In an email to ASIC of 13 December 2018 Mr Staermose complained that his and Wonfair's request for a copy of the register was met with stonewalling from Aurora. He advised ASIC that he had relayed his concerns about Aurora to a fellow unitholder, Mr Tan who held more than five per cent of the ABW. He stated that Mr Tan engaged Primary to request a copy of the register on his (Mr Tan's) behalf. He stated that Mr Tan had informed him that he had learned via Primary that Aurora had told ASIC that it had never received a request for the register of ABW.
The primary judge found that Mr Tan did not retain Primary (J [61]) and that Mr Staermose misled ASIC in this regard (J [63]).
Aurora continued to stonewall Primary's request for a copy of the register. On 18 December 2018 it said that it was not aware of a proposal of a kind mentioned in Primary's letter to Boardroom requesting a copy of the register for the purpose of a resolution to replace Aurora as responsible entity (J [64]).
The minimum period for the calling of a meeting of unitholders was 21 days. On 19 December 2018 Mr Garton Smith sent an email to Mr Purcell suggesting that the meeting (which was to be convened shortly before Christmas) be held on 15 January 2019 (J [18]). The primary judge found that the timing of the calling of the meeting and the holding of the meeting was chosen to take advantage of the Christmas and New Year holidays where many of the unitholders and Aurora's directors and staff might not be in the office or paying attention to the post (J [66]).
On 21 December 2018 Primary's staff prepared and posted by ordinary mail a notice of meeting to be held on 15 January 2019 and explanatory memorandum (J [76]). There were 650 packages comprising a coversheet, notice of meeting, explanatory memorandum and proxy form (J [75]). The primary judge found that Primary's staff added addresses for Aurora's directors and auditor to the mailout (J [75]).
As noted above, on 18 December 2018 Aurora had sent a letter to Mr Garton Smith in relation to Primary's request on 14 December 2018 for a copy of the register by asking for a more detailed specification of Primary's purpose, stating that Aurora was not aware of any current proposal for it to be removed as responsible entity. Mr Patton stated that if Mr Garton Smith were acting on instructions of Mr Tan, Aurora had sent tracing notices pursuant to s 672A of the Corporations Act on three occasions to Mr Tan due to concerns over possible breaches of the Corporations Act, and had received no response.
On 24 December 2018 Primary responded to Aurora's letter of 18 December 2018, advising that it did not act for Mr Tan (J [77]). The primary judge found that Primary deliberately did not say that a meeting had already been called. The primary judge found that Mr Garton Smith wanted Aurora to receive notice of the meeting through the post and not in advance (J [77]). (The primary judge also found that the response was misleading in respect of Mr Tan (J [78]).)
Aurora provided Primary with a copy of the register on 28 December 2018 following pressure from ASIC. Mr Patton of Aurora instructed Boardroom, when sending the register, to supply only addresses, but not email or phone details (J [82]). The primary judge correctly found that if Aurora were satisfied of Primary's stated purpose, Aurora should have provided the register in its entirety (J [83]).
On 20 December 2018 Mr Staermose and Wonfair signed authorities authorising "Tania Melkus or Nicole Lim (officers of Primary Securities Ltd)" as their agent to call and arrange to hold a general meeting of members of ABW pursuant to s 252D of the Corporations Act.
On the same day, Ms Melkus signed a notice of meeting of members of ABW as follows:
"Members of Aurora Absolute Return Fund ARSN 110303430 (the Fund) who between them hold more than 5% of the votes that may be cast at a meeting of the Fund's members, HEREBY GIVE NOTICE that they have pursuant to section 252D of the Corporations Act, 2001 called and arranged a meeting of Members ('Members') of the Fund at the time, date and place listed below to consider and vote on the resolutions specified in this notice.
Please refer to the Explanatory Memorandum that accompanies this Notice of Meeting for important information on the resolutions proposed.
[There then followed the proposed resolutions.]
Signed as agent for Members who between them hold more than 5% of the votes that may be cast at a general meeting of the Fund and who have provided signed authority for the convening of the meeting.
[Signed]
Tania Melkus
Company Secretary"
Ms Melkus was a secretary of Primary. The primary judge found (at J [129]):
"That Ms Melkus was secretary of Primary could be inferred from the cover sheet, which bore Primary's name, logo and contact details, together with references to Primary within the notice of meeting and the explanatory memorandum authored by Mr Garton Smith, 'Managing Director, Primary', but it was not clear. Members who did not read the material in its totality or carefully may have concluded that the notice was issued by the company secretary of Aurora and bore its imprimatur. It was certainly confusing."
The explanatory memorandum that accompanied the notice stated:
"1.1 Authority to call the meeting
Members entitled to cast votes representing at least 5% of the total units on issue as of the date this Notice of Meeting is issued have authorised officers of Primary Securities Ltd (Primary) to call a meeting of Members of the Aurora Absolute Return Fund ARSN 110 303 430 (the Fund) to consider changing the responsible entity from Aurora Funds Management Limited (Aurora) to Primary, and to amend the Constitution of the Fund."
No point was taken by Aurora that Ms Melkus, in her capacity as secretary of Primary (and therefore acting as agent of Primary), did not have authority to give the notice on behalf of Mr Staermose and Wonfair. It is arguable that the authority given by Mr Staermose to Ms Melkus or Ms Lim was given to them personally and that the words "(officers of Primary Securities Ltd)" were words of description only, so that it was either of the individuals and not Primary (acting through one of those individuals) who was authorised to call the meeting on Mr Staermose's and Wonfair's behalf. Instead Aurora argued at trial (but not on appeal) that the notice of meeting and explanatory memorandum were misleading by creating the false impression that the meeting was being called by Primary on behalf of unitholders holding more than five per cent of the units rather than by Ms Melkus on their behalf.
Aurora submitted that the notice was invalid because the identity of the members on whose behalf the meeting was called was not disclosed. The primary judge accepted that submission (J [130]-[141]).
The primary judge found that on 21 December 2018 Primary's staff posted 522 envelopes containing the mailout of the notice of meeting and explanatory memorandum. These were sent to those who were recorded as members in the September 2016 register. The primary judge found that Primary's staff also sent copies to the directors of Aurora and its auditor (J [75], [117]).
After Primary, with Mr Purcell's assistance, compared the register provided by Aurora on 28 December 2018 with the 2016 register, a second mailout was sent to 92 unitholders, being, in most cases, unitholders in the September 2016 register whose addresses had changed (J [84]).
The primary judge found that this comprised about 25 per cent of members by number and voting rights and a further three unitholders (0.06 per cent) were not mailed at all.
Mr Patton did not receive a copy of the notice of meeting and explanatory memorandum until 7 January 2019. The primary judge found that the mail sent to Aurora's auditors went to the wrong partner in the accounting firm and did not come to the attention of the auditors until 17 January 2019 (that is, after the date of the meeting). Her Honour found that this did not appear to have been Primary's fault (J [86]).
The primary judge was prepared to assume that giving 15 days' notice of the meeting to 25 per cent of the members of ABW was a procedural and not a substantive irregularity.
The meeting took place at the Hellenic Club in Woden, Australian Capital Territory, on 15 January 2019. Only two unitholders attended the meeting in person. One of those was Mr Staermose. Mr Garton Smith and another employee of Primary were present. Resolutions for the removal of Aurora as responsible entity and its replacement by Primary, and for amendments to the constitution were passed, with 90.8 per cent of members voting at the meeting in person or by proxy being in favour of the resolutions. The primary judge added:
"98 According to the minutes, 90.8% of the votes were in favour of the resolutions which were carried. To be clear, this was 90.8% of the votes of members who were present at the meeting in person or by proxy. Overall, these members comprised 42.45% of the total membership of ABW. Aurora submits that 90.8% of the 42.45% of members means that only 38.55% of ABW unitholders voted in favour and three-quarters of that 38.55% (being 31.4%) had contravened Chapter 6. If that 31.4% is excluded then only 7.15% of ABW unitholders voted in favour of the resolutions."
After Mr Patton received a copy of the notice of meeting and explanatory memorandum on 7 January 2019, Aurora made an announcement to the Australian Stock Exchange and made a further announcement the following day (8 January 2019). In its announcement of 7 January 2019 Aurora recommended that unitholders take no action at that time, saying that it was considering the validity of the notice of meeting, having regard to the fact that the identity of the members who are said to have called the meeting was not disclosed. In its announcement of 8 January 2019 Aurora stated that the notice calling the meeting was invalid and that it would not recognise any resolutions passed at the meeting as being valid. It advised unitholders to ignore the meeting materials and not attend (J [88]).
[2]
Explanatory memorandum
The explanatory memorandum which accompanied the notice of meeting commenced with the statement referred to at [54] above.
The explanatory memorandum then described the establishment of ABW in 2004 (under its former names) and stated that the fund had invested 100 per cent of its portfolio into a sub-fund (called the Master Fund) which was a registered managed investment scheme. It referred to the investment objective and investment strategy of the fund and to promises said to have been made in the product disclosure statement of the fund. It then referred to action taken by ASIC following the misappropriation of one million dollars from a fund called "AUP" by the former chief financial officer and director of Aurora, to the imposition by ASIC of licence conditions on Aurora, and to an ASIC requirement that Aurora appoint an independent expert to review, amongst other things, Aurora's risk management and internal governance and communication systems. The explanatory memorandum then addressed the assets in which the Master Fund had invested, stating that 44 per cent of the net asset value of the Master Fund consisted of one investment, namely stock in an ASX listed company called Molopo Energy Limited, and the write-down in value of that investment, and an adverse finding made by the Takeovers Panel against Aurora in relation to an off-market takeover offer for 100 per cent of the shares in Molopo that the Master Fund had announced.
The explanatory memorandum stated that Primary believed that it was in the interests of members to investigate the past actions of Aurora and investments made by the Fund and by the Master Fund. It then referred to Aurora's having failed to provide the register to "one of the Members of the Fund who holds more than 5% of the units in the Fund" and to Primary. The explanatory memorandum stated:
"Primary believes that it is in the interest of Members of the Fund that a new, independent, non-conflicted party replace Aurora as responsible entity of the Fund.
Primary is completely independent, that is, it has no connection with any company or person related to Aurora, and its only interest will be to represent Members.
If Primary were successful in taking over the Fund, Primary proposes to do the following:
● Appoint an investor committee
● Move to replace Aurora with Primary as the responsible entity of the Master Fund
● Investigate the past investments of the Fund and the Master Fund and make recommendations
● Implement recommendations after consultation with the members of the investor committee
● Manage the Fund and the Master Fund."
[3]
Part 2G.4 of the Corporations Act
The provisions for the calling of meetings of members of a registered managed investment scheme are contained in Pt 2G.4 of the Corporations Act. Section 252A provides that the responsible entity of a registered scheme may call a meeting of the scheme's members. Section 252B specifies the procedures to be followed if sufficient members, measured either by voting rights or by number, request the responsible entity to call and arrange to hold a meeting of the scheme's members to vote on a proposed resolution. Section 252C deals with the circumstance where a responsible entity fails to call a meeting if a request is made under s 252B.
Section 252D is headed "Calling of meetings of members by members". It was this section that was purportedly invoked by the notice signed by Ms Melkus on behalf of unnamed members. Section 252D provides:
"252D Calling of meetings of members by members
(1) Members of a registered scheme who hold interests carrying at least 5% of the votes that may be cast at a meeting of the scheme's members may call and arrange to hold a meeting of the scheme's members to consider and vote on a proposed special resolution or a proposed extraordinary resolution. The members calling the meeting must pay the expenses of calling and holding the meeting.
(2) The meeting must be called in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity.
(3) The percentage of the votes carried by interests that members hold is to be worked out as at the midnight before the meeting is called."
Section 252D(2) directs attention to the way in which meetings of scheme members may be called by the responsible entity under s 252B. Section 252B relevantly provides:
"252B Calling of meetings of members by responsible entity when requested by members
(1) The responsible entity of a registered scheme must call and arrange to hold a meeting of the scheme's members to consider and vote on a proposed special or extraordinary resolution on the request of:
(a) members with at least 5% of the votes that may be cast on the resolution; or
(b) at least 100 members who are entitled to vote on the resolution.
...
(2) The request must:
(a) be in writing; and
(b) state any resolution to be proposed at the meeting; and
(c) be signed by the members proposing to move the resolution.
(3) The request may be accompanied by a statement about the proposed resolution provided by the members making the request.
...
(6) The responsible entity must call the meeting within 21 days after the request is given to it. The meeting is to be held not later than 2 months after the request is given to the responsible entity.
(7) The responsible entity must give to each of the members a copy of the proposed resolution and statement (if any) at the same time, or as soon as practicable afterwards, as it gives notice of the meeting. The responsible entity must distribute the copies in the same way in which it gives notice of the meeting.
..."
[4]
Validity of the Notice of Meeting
Primary emphasised that s 252D(2) requires only that the meeting be "called" in the same way - so far as possible - as meetings of the scheme's members may be called by the responsible entity under s 252B.
Section 252B identifies three stages for the holding of meeting of members called by a responsible entity. The first stage is that members either holding at least five per cent of voting rights or numbering at least 100, make a request to the responsible entity for the responsible entity to call and arrange to hold a meeting. In making a request to the responsible entity for a meeting to be called and held, the members making the request must be identified. Primary submitted that once a valid request was received, the first stage for the calling of a meeting under s 252B was exhausted. There is no requirement in s 252B for the calling of a meeting by the responsible entity that requires a separate identification of the members on whose behest the responsible entity is calling the meeting.
Primary submitted that s 252D(2) requires only that the meeting be called in the same way - so far as possible - as meetings of the scheme's members might be called by the responsible entity. This requires that the same period of notice be given as would be required for a meeting called by the responsible entity under s 252B (that is, not less than 21 days and not more than two months' notice) (s 252B(6)). It requires members calling the meeting to give to the members of the scheme a copy of the proposed resolution and permits the giving of a statement (s 252B(7)). It requires that the members calling the meeting be responsible for the expenses (s 252B(9)). It does not require, so Primary submitted, that the identity of the members calling the meeting be disclosed.
Members who request the responsible entity to call a meeting, or who propose their own resolution at a meeting called by other members or by the responsible entity, or who wish to have a statement given to other members, must identify themselves (ss 252B(2), 252L(2) and 252N(3)).
Referring to these provisions, the primary judge said:
"135 The obvious rationale for the requirement that the member identify themselves when exercising these rights is that the responsible entity can confirm that the member is entitled to avail themselves of that right. It seems to me that the reference in section 252D(2) to a member calling a meeting themselves, 'in the same way-so far as is possible-in which meetings of the scheme's members may be called by the responsible entity', captures the mandatory requirement that the member identify themselves so that the members can satisfy themselves that the member calling the meeting is entitled to do so.
136 This is consistent with general practice when calling a meeting, as reflected in the common law. The authors of Shackleton on the Law and Practice of Meetings (14th ed., Sweet & Maxwell, 2017) at [5-08] state: (citations omitted)
If a meeting is summoned without authority, it will be invalid.
It is customary for a notice to indicate clearly on whose authority it is issued, and for it to be issued over the name of an authorised official. The first requirement is fundamental, but the second is more a matter of form and is perhaps not indispensable, provided the notice is in other respects good.
137 Similarly, in Lang, Horsley's Meetings, Procedure, Law and Practice (7th ed., LexisNexis, 2015) the author states at [4.3]:
A notice needs to be issued with proper authority, that is, in accordance with any requirement in the rules, or consequent to a resolution of the appropriate body or committee. The notice should show the name and office, that is the appointment of the person who signs and issues the notice. That is normally the secretary.
If the rules provide that notices are to be issued by order of or under the hand of an officer or officers as specified, a departure from this or neglecting to refer to such officers on the notice makes it invalid, and the meeting is therefore not duly convened: R [sic] v Fulton (1876) 2 VLR (Eq) 100 compare Allen v Hagger (1983) 41R 100."
[5]
Section 1322
Aurora submits that the primary judge ought to have found that not only was only 15 days' notice given to 25 per cent of the members (and no notice given to three members), but that her Honour also ought to have found that less than the prescribed 21-day period of notice was given to the directors of Aurora and that no notice was given to its auditor. Aurora disputes the primary judge's finding (J [75]) that the copies of the notice and explanatory memorandum were posted by Primary to the directors and auditor in its first mailout on 21 December 2018.
Primary's evidence of posting the first mailout was given by Ms Sandra Fisher (Blue 59). She deposed:
"6 On the 20th December 2018 I received an email from Rob [Garton Smith] at approximately 2.57pm attaching the register for the mailout. A copy of which is annexed hereto and marked 'SF A', I then saved the Microsoft Excel spreadsheet to the server and used the spreadsheet to process a mail merge to create the cover sheets for the mailout.
7 I was sent an email from Rob Garton Smith late on Thursday 20 December 2018 which was sent to Rob Garton Smith by Andrew Purcell which had a list of new names and addresses to be included in the mailout. Now produced and shown to me marked 'SF B'. These new investors were also sent the package.
8 Aurora Funds Management Limited (Aurora) was an addressee included in the mail out. I confirm on Friday 21 December 2018 that I sent the package addressed to Aurora at its post office box, 33281 Melbourne based on the email referred to in paragraph 7. I further confirm on Friday 21 December 2018 I also actioned a further copy to be sent to Aurora to Suite 613, Level 6, 370 St Kilda Rd, Melbourne based on the email referred to in paragraph 7. I am aware that the letter sent to Aurora's post office box was returned to Primary in January 2019."
The register referred to in para 6 was the 2016 register obtained from Mr Rigoni.
The annexure "SF B" comprised an email sent by Mr Garton Smith to Ms Fisher at 6:01pm on 20 December 2018 forwarding the following email chain between Mr Purcell and Mr Garton Smith:
"Begin forwarded message:
From: Andrew Purcell
Date: 20 December 2018 at 6:00:08pm AWST
To: Rob Garton Smith
Subject: RE: ABW - additional unit holders
....also (new names from Tim's recent visual inspection of register recently)
Sandy Bottoms Pty Ltd
[XXX] Hastings Street
Noosa Heads QLD 4567
Yeah Pty Ltd
[XXX] Oxford Road Strathfield NSW 2135
Old THC Pty Ltd C/-MCGOVERN FINANCIAL SERVICES PTY LIMITED
[XXX] Grosvenor Street,
NEUTRAL BAY NSW 2089
From: Andrew Purcell
Sent: Thursday, 20 December 2018 20:05
To: Rob GartonSmith
Subject: Re: ABW - additional unit holders
Addresses in the one place
CHESSWONFAIR INVESTMENTS PTY LTD
PO BOX [XXX]
BEERWAH QLD
4519
WONFAIR INVESTMENTS PTY LTDCompany Registered [XXX] JONES ST
MOOLOOLAH V ALLEY QLD 4553
AUSTRALIA
Postal
WONFAIR INVESTMENTS PTY LTD
PO BOX [XXX]
BEERWAH QLD 4519
AUSTRALIA
MR TIM SANDEMAN STAERMOSE
GPO BOX [XXX]
CENTRAL
HONG KONG
HKG
MR CHOR LENG TAN
PO BOX [XXX]
EAST PERTH WA 6892
MR ZACHARY DAVID FRASESR
[XXX YY] STREET
LANE COVE NSW 2066
SOLANO INVESTMENT LLC
[XX YY] AVENUE #85320
TALLAHASSEE FLORIDA
USA 32313
AURORA FUNDS MANAGEMENT LIMITED
SUITE 613, LEVEL 6
370 ST KILDA RD
MELBOURNE VIC 3004
VICTOR SICILIANO
SUITE 613, LEVEL 6
370 ST KILDA RD
MELBOURNE VIC 3004
Also need to send copies to the Directors of the RE, and the auditor and auditor [sic] of the compliance plan (per Corps Act Requirements):
THE DIRECTORS
AURORA FUNDS MANAGEMENT LIMITED
SUITE 613, LEVEL 6
370 ST KILDA RD
MELBOURNE VIC 3004
GRANT THORNTON
COLLINS SQUARE, TOWER 1
727 COLLINS STREET
MELBOURNE VIC 3008
From: Rob Garton Smith
Sent: Thursday, December 20, 2018 7:07:27 PM
To: Andrew Purcell
Subject: RE: ABW - additional unit holders
Andrew see comments
1. Won[f]air/Tim Staermose - address please
2. CHOR Leng Tan - address please
3. JP Morgan Nominees Australia Limited
Locked Bag [XXX]
Melbourne VIC 3001
4. Aurora Funds Management Limited
PO Box 33281
Melbourne VIC 3004
5. Mrs. Christine Anne Julian Register has Michael H Julian Pty Ltd at the same address
GPO Box [XXX]
Canberra ACT 3601"
[6]
Misleading notice
Aurora's ground of contention is quoted at [70] above. Three matters should be noted at the outset. First, Aurora does not challenge the primary judge's application of observations made by Wheeler JA (with whom McLure JA agreed) in Westralia Property Management Ltd v Davison [2006] WASCA 203 at [21] and [22] that s 249D(2) does not impose on members of a registered scheme who call a meeting under s 252D a like duty as the responsible entity (or directors in the case of a company) would owe to members to make full and fair disclosure of all matters which would enable members to make a properly informed judgment. That question is not before us and there is no occasion to consider the apparently conflicting authorities on the question that are discussed by the primary judge.
Secondly, the claim for relief is squarely based upon the statutory provisions referred to in the ground of appeal and not on common law principles of company law.
Thirdly, Aurora does not contend that the representations referred to in ground 5(a)(ii) and (iii) were themselves misleading. Rather, it is said that the misleading conduct alleged was that the explanatory memorandum did not disclose that Mr Staermose and Wonfair, together with certain clients, plus Mr Rigoni, collectively held about 36.5 per cent of the units in ABW and were acting together in a covert and concerted attempt to remove Aurora as responsible entity. Primary's role in issuing the explanatory memorandum referred to in ground 5(a) is said to be a reason that unitholders would reasonably expect that the matter referred to in 5(b) ought to have been disclosed if it existed: (Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 42 (per Gummow J) referring to Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 at 53,193 that:
"...unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist.")
The way Aurora put its case on appeal was different from its submissions before the primary judge. Aurora submitted that an ABW member would reasonably have expected to be informed by Primary if Primary were aware that Mr Staermose, acting with other ABW members, represented a voting block of 38 per cent and that the meeting that was called was part of a process by which Mr Staermose proposed to take control of the fund without disclosing that voting block to the market, nor paying a control premium for it, in apparent breach of Ch 6.
[7]
Application for leave to amend
After judgment was reserved Primary sought leave to amend the notice of appeal to seek the following order:
"An order pursuant to s 1322(4) of the Corporations Act that the meeting of members of the ABW fund held on 15 January 2019 was not invalidated by reason of the failure of the members calling the meeting under s 252D to identify themselves on the face of the notice of meeting."
As noted above at [140] Primary did not seek any relief under s 1322(4) at trial.
Primary correctly submitted that s 1322(4)(a) is not predicated upon the existence of an irregularity, substantive or procedural. At the hearing on the appeal Primary accepted that if the notice were invalid because it did not identify the members on whose behalf the meeting was called, this was not a procedural irregularity to which s 1322(2) applied. As noted at [99], although this had been a ground of appeal, that ground was abandoned. The proposed amended notice of appeal did not seek to re-agitate that ground.
Primary submitted that this court now has before it all the facts which bear upon the claim for the amended relief sought, as completely as if the claim had run before the court below and, by inference at least, submitted that no additional evidence would have been adduced below had the claim been made at trial.
Leave to amend should be refused. Aurora submitted that the fact that no cross-claim for relief under s 1322(4) was brought below had an effect on how the case was run. Aurora submitted that when Mr Garton Smith was cross-examined on the spreadsheet referred to at [165], he said that the document did not raise any concern for him that a relevant agreement had been entered into between Mr Staermose and his clients. Counsel submitted that Mr Garton Smith was not challenged on the truth of that answer because his honesty was not in issue. This was because Aurora took the position that whether the identity of the authorising members should have been disclosed was an objective question. Counsel submitted that had Primary been seeking relief under s 1322(4) on this issue it would have been necessary to explore whether Mr Garton Smith was acting dishonestly. The assurance of reputable and experienced counsel as to how the trial might have been differently conducted if the point sought to be taken on appeal had been raised below is not to be lightly set aside. I accept that the trial may have been conducted differently had the issue been raised below.
[8]
Endnote
Section 252D is quoted below at [76].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 September 2020
Solicitors:
Norton Smith & Co (Appellant)
Dentons Australia Limited (Respondent)
File Number(s): 2019/196566
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Equity Division
Citation: [2019] NSWSC 630
Date of Decision: 30 May 2019
Before: Rees J
File Number(s): 2019/33073
King v Fulton (1876) 2 VLR (Eq) 100; Bisan Ltd v Cellante [2002] VSC 430; 43 ACSR 322; Re Carlton Football Club Limited [2004] VSC 379; 51 ACSR 29; Khan v Khan; Re Islamic Association Western Suburbs [2015] NSWSC 638: considered.
Leave to amend its notice of appeal should not be given to the appellant to seek an order pursuant to s 1322(4) curing this irregularity as it would substantially widen the inquiry. It is reasonable to accept that the trial may have been run differently had such an order been sought below: [177], [178].
Nenna v Australian Securities and Investments Commission (2011) 198 FCR 32; [2011] FCA 1193; Beck v L W Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76; 87 ACSR 672: considered.
Unlike s 1322(4) which raises the question of whether the making of a validating order would cause substantial injustice, under s 1322(2) the question is whether the procedural irregularity has caused or may cause substantial injustice: [146]. Contrary to the primary judge, there was no substantial injustice caused by failing to provide proper notice: [148]-[154]. There was no evidence that a unitholder would have conducted themselves differently or that the respondent would have become aware of the meeting at an earlier stage had proper notice been given: [152], [153].
Judgment
BELL P: I agree with the reasons and orders proposed by White JA.
LEEMING JA: I agree with White JA.
WHITE JA: This is an appeal from orders of the Equity Division (Rees J) of 30 May 2019. The proceedings before the primary judge concerned the validity of resolutions passed at a meeting held on 15 January 2019 of members of a listed management investment scheme called Aurora Absolute Return Fund ("ABW"). At least prior to 15 January 2019, the respondent, Aurora Funds Management Limited ("Aurora"), was the responsible entity of the fund.
The resolutions purportedly passed at the meeting of members of the fund on 15 January 2019 included that Aurora be removed as responsible entity of ABW and that the appellant, Primary Securities Limited ("Primary") be appointed as the new responsible entity of the fund. Those attending either in person or by proxy also purportedly resolved to amend the fund's constitution. That resolution was proposed in return for Primary's agreeing to take on the role of responsible entity.
The primary judge made the following declarations and orders (In the matter of Aurora Funds Management Limited [2019] NSWSC 626 at [170]):
"(1) Declare that the meeting of the members of the Aurora Absolute Return Fund on 15 January 2019 was invalid.
(2) Declare that the resolutions made at the meeting on 15 January 2019 were invalid.
(3) Declare that the first defendant is not, and has never been, the responsible entity of the Aurora Absolute Return Fund.
(4) Order the second defendant to rectify its record of registration to:
(a) remove the first defendant as the responsible entity of the Aurora Absolute Return Fund; and
(b) reinstate the plaintiff as the responsible entity of the Aurora Absolute Return Fund, effective from the date of its original appointment.
(5) Order the first defendant to pay the plaintiff's costs of the proceedings."
The meeting was not convened by Aurora. It was purportedly called by Primary as agent for unidentified members (at [52]-[55] below). The meeting was purportedly called by members pursuant to s 252D of the Corporations Act 2001 (Cth). [1] The primary judge held that the notice calling the meeting was not valid because it was a requirement of s 252D(2) that the members calling the meeting be identified in the notice. Her Honour held that the notice was invalid and the meeting was not validly convened (J [141]).
The primary judge held that the failure to identify, in the notice of meeting, the members calling the meeting was a substantive, and not procedural, irregularity and hence s 1322(2) of the Corporations Act did not apply. Primary did not seek an order under s 1322(4) (J [167]).
1) Refused the appellant leave to file a further amended notice of appeal; 2) Dismissed the appeal with costs.
The explanatory memorandum stated that Primary was independent from all parties associated with the fund. The explanatory memorandum concluded with the statement that the information in it had been prepared by or on behalf of Primary and by Primary alone and that the members who convened the meeting were not responsible for the explanatory memorandum.
Aurora submitted that the explanatory memorandum was misleading because of what it failed to disclose. Nine complaints were pressed at trial.
The primary judge held that it was not necessary to deal with the particular features of the notice and explanatory memorandum which Aurora complained were misleading. This was because a reader of the explanatory memorandum would understand that the members calling the meeting were dissatisfied with Aurora's performance and wanted the new responsible entity to investigate Aurora's management of the fund. Such a reader would not expect the member calling the meeting to put forward the counter arguments that Aurora might rely upon. Rather, the reader would understand that Primary as the author of the explanatory memorandum would be putting its case as to why it should be appointed instead of Aurora and not purporting to give an impartial assessment of Aurora's performance (J [157]). A member calling a meeting was not under the same duty as would a board of directors calling a meeting fully and fairly to inform and instruct shareholders on the matters relevant to a proposed resolution (J [145]-[150]).
On appeal, Aurora contended:
"5. The primary judge ought to have declared that the Purported Meeting was invalid on the additional ground that the EM was misleading and deceptive, contrary to section 18 of the Australian Consumer Law (and/or section 1041H of the Corporations Act 2001 and/or section 12DA of the Australian Securities and Investments Commission Act 2001), by reason of:
(a) Primary's role in issuing the EM, being that:
(i) as found at [69], [70], [78] and [157], Primary was acting for, or assisting, Mr Staermose and Wonfair in seeking to replace Aurora as responsible entity of ABW, and was making representations in the EM to the members of ABW for the purposes of putting its case as to why that should occur;
(ii) Primary stated in the section 1.7 of the EM that it was 'a new, independent, non-conflicted party', was 'completely independent' and whose 'only interest will be to represent members';
(iii) Primary stated in the section 1.14 of the EM that it alone had prepared the EM, and that the (undisclosed) members who had called the meeting (being Mr Staermose and Wonfair) were not responsible for the EM;
(b) the non-disclosure in the EM of the findings ... to the effect that Mr Staermose and Wonfair, together with certain clients of Mr Staermose plus at least Mr Rigoni, collectively held about 36.5% of the units in ABW, were acting together in a covert and concerted attempt to remove Aurora as responsible entity."
The primary judge stated that Aurora's complaint that there was a "relevant agreement" between Mr Staermose and his "associates" that triggered a contravention or contraventions of Ch 6 of the Corporations Act infused "all else" (J [105] ff).
Mr Staermose, Wonfair, and the persons alleged to be associates of Mr Staermose and Wonfair were not parties to the proceeding and no issue as to whether those persons had engaged in conduct in contravention of Ch 6 of the Corporations Act was directly relevant to any claim for relief. Section 606 of the Corporations Act, read with s 604, prohibits the acquisition of relevant voting interests in a listed registered scheme in circumstances which were said to be engaged in the present case. But s 607 provides that a transaction is not invalid merely because it involves a contravention of s 606. Section 657A provides that the Takeovers Panel may make declarations of unacceptable circumstances in relation to a company's affairs. The primary judge found that Mr Staermose, his clients and at least one other member were acting together in a concerted attempt to remove Aurora as responsible entity (J [114]). But, as the primary judge said, the only relevance of that finding was as to whether this was a relevant matter for other members to know such that it was misleading for it not to be disclosed in the explanatory memorandum (J [113]).
The primary judge found that the resolutions purportedly passed at the meeting on 15 January 2019 were invalid for two reasons. First, the identity of the members calling the meeting was not disclosed in the notice (J [141]). This was a substantive irregularity (J [167]). Secondly, because 21 days' notice of the meeting was not given to 25 per cent of members who instead received 15 days' notice (J [118]; [158]).
It was not disputed on the hearing of the appeal that if the notice calling the meeting were invalid for failure to identify the members who called the meeting, that that was a substantive and not a procedural irregularity within the meaning of s 1322 of the Corporations Act and that the resolutions were invalid.
Division 2 of Pt 2G.4 is headed "How to call meetings of members". Sections 252F, 252G, 252H and 252J are in Div 2. They relevantly provide:
"252F Amount of notice of meetings
At least 21 days notice must be given of a meeting of the members of a registered scheme. However, the scheme's constitution may specify a longer minimum period of notice.
252G Notice of meetings of members to members, directors and auditors
Notice to members, directors and auditors individually
(1) Written notice of a meeting of a registered scheme's members must be given to
(a) each member of the scheme entitled to vote at the meeting; and
(b) each director of the responsible entity; and
(c) the auditor of the scheme; and
(d) the auditor of the scheme compliance plan.
If an interest is held jointly, notice need only be given to 1 of the members.
...
How notice is given
(3) Unless the scheme's constitution provides otherwise, the responsible entity may give notice of the meeting to a member:
(a) personally; or
(b) by sending it by post to the address for the member in the register of members or an alternative address (if any) nominated by the member; or
(c) by sending it to the fax number or electronic address (if any) nominated by the member.
Note: A defect in the notice given may not invalidate a meeting (see section 1322).
When notice by post or fax is given
(4) Unless the scheme's constitution provides otherwise, a notice of meeting sent by post is taken to be given 3 days after it is posted. A notice of meeting sent by fax, or other electronic means, is taken to be given on the business day after it is sent.
252H Auditors entitled to other communications
(1) The responsible entity of a registered scheme must give the auditor of the scheme and the auditor of the scheme compliance plan any other communications relating to the meeting that a member of the scheme is entitled to receive.
...
252J Contents of notice of meetings of members
A notice of a meeting of a registered scheme's members must:
(a) set out the place, date and time for the meeting (and, if the meeting is to be held in 2 or more places, the technology that will be used to facilitate this); and
(b) state the general nature of the meeting's business; and
(c) if a special or extraordinary resolution is to be proposed at the meeting - set out an intention to propose the special or extraordinary resolution and state the resolution; and
(d) contain a statement setting out the following information:
(i) that the member has a right to appoint a proxy;
(ii) that the proxy does not need to be a member of the registered scheme;
(iii) that if the member appoints 2 proxies the member may specify the proportion or number of votes the proxy is appointed to exercise.
Note: There may be other requirements for disclosure to members."
Section 252L enables members, other than members who have requested the responsible entity to call a meeting under s 252B, or who have themselves called a meeting under s 252D, to give notice of a proposed resolution. Section 252L relevantly provides:
"252L Members' resolutions
(1) The following members of a registered scheme may give the responsible entity notice of a resolution that they propose to move at a meeting of the scheme's members:
(a) members with at least 5% of the votes that may be cast on the resolution; or
(b) at least 100 members who are entitled to vote at a meeting of the scheme's members.
...
(2) The notice must:
(a) be in writing; and
(b) set out the wording of the proposed resolution; and
(c) be signed by the members giving the notice."
Section 252N provides that members of the requisite number or voting interest may request a responsible entity to give to all members of the scheme a statement about a proposed resolution. Pursuant to s 252N(3) such a request must be in writing and signed by the members making the request.
Section 252T provides that the auditor of a registered scheme is entitled to attend any meeting of the scheme's members and to be heard at that meeting on any part of the business of the meeting that concerns the auditor in the auditor's capacity as auditor (s 252T(2)).
Part of the business of the meeting identified by the explanatory memorandum was to consider Aurora's response to the misappropriation by Ms Poon of money of another fund under the management of Aurora and the subsequent requirement for an independent expert review of Aurora's compliance procedures, including its risk management systems. At least arguably, that part of the business of the meeting concerned the new auditor, Grant Thornton, in its capacity as auditor.
After considering King v Fulton (1876) 2 VLR (Eq) 100 and Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638 and Re Carlton Football Club Limited [2004] VSC 379; 51 ACSR 29, the primary judge concluded (at [141]):
"Having regard to the provisions of Part 2G.4, Divisions 1, 2 and 3, as detailed above, it seems to me that the reference in section 252D(2) to a member calling a meeting themselves, 'in the same way-so far as is possible-in which meetings of the scheme's members may be called by the responsible entity', captures the mandatory requirement that the member identify themselves to others so that they can satisfy themselves that the member calling the meeting is entitled to do so. The notice issued by Primary as agent for unidentified members had the result that the validity of the notice could not be verified without further enquiry by Aurora or, perhaps more importantly, by other members. Section 252D does not contemplate a meeting being called by unidentified members, that is, differently, from members exercising rights under sections 252B, 252L and 252N. It may have been permissible for Primary to specify in the notice that its called the meeting 'as agents for Mr Staermose and Wonfair', but not for anonymous members. Therefore, the notice was not valid and the meeting was not validly convened."
I generally agree with the primary judge's reasons. Primary criticised the primary judge's reasoning at [135] quoted above in that her Honour considered that a requirement that the members calling a meeting under s 252D(2) identify themselves serve the purpose that the other members could be satisfied that the members calling the meeting were entitled to do so. Other members could not conclusively make that determination because they would not have ready access to the register of members.
Nonetheless, the substance of the point made by the primary judge is correct. Because the notice must be given to each director of the responsible entity, the directors of the responsible entity, who have access to the register, will be able to determine whether the meeting has been validly called if the identity of the members calling the meeting is disclosed.
A practical illustration of the importance of such disclosure is Bisan Ltd v Cellante [2002] VSC 430; 43 ACSR 322 where a general meeting was called by an agent on behalf of four shareholders who together were stated to be entitled to shares entitling them to exercise 6.01 per cent of the votes at a general meeting. The shareholders who were calling the meeting (through their agent) were named. Before the notice convening the meeting was sent to shareholders, one of the shareholders who owned 1.21 per cent of the shares revoked its authority to its agent. This was one of the grounds upon which Dodds-Streeton J restrained the holding of the meeting. If the notice had been given on behalf of unnamed shareholders, that information might not have become available.
Where a meeting is called by the responsible entity under s 252B, the identity of the person calling the meeting will be known. Therefore, for the meeting called under s 252D to be called in the same way, so far as possible, as a meeting called by the responsible entity, the identity of the persons calling the meeting should be known. It is not to the point that s 252B does not require the responsible entity who calls a meeting at the request of members to identify the members who made the request. Consistently with the requirements of the common law in regard to the holding of meetings set out in Shackleton on the Law and Practice of Meetings (14th ed., Sweet & Maxwell, 2017) and Lang, Horsley's Meetings, Procedure, Law and Practice (7th ed., LexisNexis, 2015) quoted by the primary judge as set out above, a notice calling a meeting must clearly indicate on whose authority the notice is issued.
In King v Fulton one of the reasons that the notice was invalid was that it did not indicate who gave the order for the calling of the meeting. There is no reason to exclude the common law requirements for the calling of meetings in the construction of s 252D. The note to s 252J is a textual indication that there may be matters, beyond those expressly provided for by the Act, which must be disclosed when calling a meeting.
Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc concerned s 249D of the Corporations Act which is concerned with the calling of meetings of a company by directors when requested by members with at least five per cent of voting rights. The section is similar but not identical in structure to s 252B. Like s 252B(2)(c), s 249D(2)(c) requires the request to be signed by the members proposing the resolution to be moved at the requested meeting. Black J held that this requirement was not met by the printed name of the person. His Honour said (at [51]):
"... It can scarcely be contemplated that, if a requisition contained the printed names of 50, 100 or 500 members of a company or association, and required the calling of a meeting within a relatively short time period, a company or association should have to make individual inquiries to determine whether each of those persons had authorised the application of his or her name to the document, in printed form, by an agent."
These authorities supported the primary judge's conclusion that the identity of those calling the meeting should be disclosed so that their entitlement to do so can be verified.
There are also contextual and practical reasons that support the primary judge's conclusion. The legislative provisions are concerned with the calling of a meeting of members of the registered scheme. It is of the essence of a meeting that matters of mutual interest are to be debated, or at least considered, by members. There is something incongruous in the idea of a member calling other members to a meeting to debate matters of mutual interest where the other members do not know who has called the meeting and with whom they will be debating.
The identity of members calling the meeting could be relevant to how the other members of the scheme vote on a proposed resolution. Some individuals or companies have a high commercial reputation. Some have a low reputation. The reputation, whether it be good or bad, of members proposing a resolution could be an important consideration for other members in considering how to vote.
For these reasons I agree with the primary judge's conclusion that the notice convening the meeting was invalid. Hence, the resolutions purportedly passed at the meeting were invalid. On this ground, the appeal should be dismissed.
Ground 5 of the amended notice of appeal challenged the primary judge's finding that the failure to identify the members calling the meeting was a substantive irregularity and that s 1322(2) did not apply. This ground was abandoned:
"BELL P: Can I just clarify one thing in my own mind? It might be well clear in the written submissions but just humour me. I understand your point about the 25% getting less notice, that being a procedural irregularity and that's why we're into 1322 and you're attacking her Honour's five factors which seem to be accumulative. I understand those arguments but with regard to the first argument, the non-identification of the conveners of the meeting, her Honour found that that rendered the matter invalid and I understand your arguments there about the construction arguments, we don't need to go back there. But do you say in the alternative that, even if it was required, that it was just a procedural irregularity?
MARTIN: No.
WHITE JA: That's quite clear from your written submissions and you told us--
BELL P: Yes, yes.
WHITE JA: --that your submissions earlier addressed ground 5 as well as grounds 1 and 2.
BELL P: Yes, all right. Sorry. Thank you.
MARTIN: Yes.
LEEMING JA: So to be precise, despite, perhaps, the language of ground 5, you don't rely upon 1322 if you're wrong in your primary submission on the notice containing the names?
MARTIN: That's so."
That is sufficient to dispose of the appeal, save for Primary's application, after judgment was reserved, to amend its notice of appeal. That application is dealt with below after consideration of the other issues.
Aurora had pleaded that it and its directors did not receive the notice and explanatory memorandum until 7 January 2019 and that it was not until 17 January 2019 that its auditor received a copy of those documents. It submitted that Ms Fisher's affidavit established that she posted the notice of meeting and explanatory memorandum to those persons shown as unitholders in the register she was sent on 20 December 2018 (para 6), and to the new investors shown in the email from Mr Purcell to Mr Garton Smith which she was sent on Thursday, 20 December 2018 (para 7) and to Aurora (para 8).
Aurora submitted that this evidence showed that the original mailout on 21 December did not include the posting of the notice of meeting to each director of Aurora, nor to its auditor.
In other words, Aurora submitted that Ms Fisher's reference to "these new investors" was only a reference to the new unitholders referred to in the third of the three emails forwarded to Ms Fisher by Mr Garton Smith, or, perhaps, to those unitholders and the other unitholders whose addresses were provided in the second email.
Aurora had three directors: Mr Patton, a Mr Victor Siciliano, and a Mr Anthony Hartnell. Mr Patton and Mr Hartnell were not unitholders. Mr Siciliano was. He was separately referred to in the second email in the chain of emails forwarded to Ms Fisher on 20 December 2018 where his address was given as the same address as Aurora's.
Mr Siciliano left the Aurora office on 21 December 2018 for the Christmas break. On his return on 7 January 2019 he found a postal package addressed to him containing a copy of the notice and explanatory memorandum at his desk.
On Friday 4 January Mr Patton asked Mr Garton Smith to send him a copy of any materials sent to unitholders. (It will be recalled that Aurora provided Primary with a copy of the register on 28 December 2018 ([50] above)).
At 3:43pm on 4 January, Mr Garton Smith informed Mr Patton "meeting documents" had been sent to the company and Mr Patton personally.
Mr Patton did not receive the notice of meeting or explanatory memorandum until Monday, 7 January 2019. He did not say how or to whom the envelope he received was addressed.
Mr Patton included in a bundle of documents that he exhibited to his affidavit a copy of an envelope received from Primary addressed to him at his residential address in Camberwell, Victoria. He did not say whether this was the package that he received on 7 January, or whether the document received by him on 7 January was that provided to Mr Siciliano that Mr Siciliano received on that day, or whether it was a document addressed to Aurora, or to:
"The Directors
Aurora Funds Management Ltd".
Mr Hartnell received an envelope addressed to him at his residential address in Greenwich, New South Wales. He thought it was junk mail and so did not open it, but left it on his desk at his office in Elizabeth Street where it remained unopened until 25 January 2019.
Primary adduced no evidence as to how or when the envelopes addressed to the residential addresses of Messrs Patton and Hartnell were posted.
Primary made a second mailout on 29 December 2018 following inspection of the register on 28 December 2018. A Ms Natasha Olsen deposed that she attended Primary's offices on 28 December 2018 and was advised by Mr Garton Smith that Primary needed to supplement the mailout and it had been provided with the Aurora register by Boardroom. She received an email from Mr Purcell which attached the register and highlighted the investors that needed to be sent the meeting documents. She arranged for envelopes to be prepared and for the notice of meeting and explanatory memorandum to be placed in the envelopes addressed to 92 investors, most of whom were investors whose address had changed.
On 28 December 2018 Mr Garton Smith sent an email to Mr Purcell with the subject heading "Who was mailed to", stating:
"These attachments are in directory for the mailout, and the extra email from you with additions.
I understand that all were mailed to, including individual directors from a company search we did. Sandy tells me the full list of additional ones mailed to are in her tray on a hard copy document.
We can pick up any missing and odd lots next week, or when we return."
Ms Fisher's affidavit of 22 March 2019 does not refer to her having posted a package to the individual directors.
The emails Ms Fisher received on 20 December 2018 are set out at [103]. They contained the subject heading "ABW - additional unitholders". Under that heading were named some new unitholders, some existing unitholders, Aurora itself, and "The Directors Aurora Funds Management Ltd" and Grant Thornton. They were all persons included in the "... list of new names and addresses to be included in the mailout" referred to by Ms Fisher in para 7 of her affidavit. She referred to such persons as "these new investors".
Ms Fisher was not required for cross-examination.
I do not conclude that the letters posted to the directors' residential addresses were posted on 21 December 2018. But I understand Ms Fisher's evidence to be that the companies and persons whose names and addresses were set out in the email chain she was forwarded on 20 December 2018 were sent the package. An affidavit must tell not only the truth but the whole truth (ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 at 197). That is, an affidavit must not tell a half-truth so that it is misleading by omission. If, when Ms Fisher made her affidavit, she was aware that she had not posted the packages addressed to "The Directors Aurora Funds Management Ltd", or to Grant Thornton, she would not have been telling the whole truth if she refrained from saying so, and took recourse to the ambiguous language of para 7. No such inference should be drawn.
Section 252G(1)(b) requires written notice of the meeting be given to "each director".
Pursuant to s 28A of the Acts Interpretation Act 1901 (Cth) (the operation of which is preserved by s 109X(6)(a) of the Corporations Act), where an Act requires a document to be served on a natural person, including where the expression "give" is used, the document may be served on that person by sending it by pre-paid post to the place of business of the person last known to the person serving the document (s 28A(1)(b)). Service by post may be effected by "properly addressing, prepaying and posting the document as a letter" (s 29(1)).
Aurora did not submit that the documents were not "properly addressed" by being addressed to "the directors". Nor did it submit that Aurora's address was not the directors' last known place of business.
Although the notice was not received by Mr Patton (or Mr Siciliano) until 7 January 2019, pursuant to s 252G(4) it is taken to have been given three days after it was posted, that is, on 24 December 2018.
Primary has established that it posted the notice to Aurora's directors at their last known place of business on 21 December 2018.
If I am wrong in that conclusion, then, contrary to Aurora's submission, failure to give the requisite notice to the directors would be a procedural irregularity within the meaning of s 1322, being an irregularity or deficiency as to notice. That the irregularity should be properly classified as procedural is also clear from the fact that it would have been a failure to comply with the requirements of ss 252F and 252G which are contained in Div 2 of Pt 2G.4 under the heading "How to call meetings of members". That is clearly a reference to a procedure to be followed.
The procedural irregularity would not invalidate the meeting unless the court were of the opinion that the irregularity had caused substantial injustice that could not be remedied by any order of the court and declared the meeting to be invalid. The only evidence of substantial injustice was that given by Mr Patton.
Mr Patton gave evidence as to what he would have done had he received the notice of meeting and explanatory memorandum at least 21 days before 15 January 2019. The primary judge summarised his evidence (at J [90]) as follows:
"Mr Patton says that if Primary had provided Aurora with the notice and explanatory memorandum at least 21 days before 15 January 2019, he would also have arranged for Aurora to issue a communiqué to ABW's members addressing each of the matters in the explanatory memorandum with which Aurora took issue 'in order to fully inform them about the matters for determination at the meeting'. Aurora would have disclosed its concerns about breaches of Chapter 6. Mr Patton said that, as he did not receive the mail out until 7 January 2019, he did not think he had sufficient time to prepare such a communiqué and provide it to all of ABW's members in advance of the meeting. Aurora would need to find out from Primary who were the members calling the meeting, and address the implications of that in the communiqué, which would have required legal review and sign-off by the board. Unlike announcements to the Australian Stock Exchange, such a communiqué would have needed to address each of the points made by Primary in the explanatory memorandum and likely comprise some 15 pages. Although the register contained email addresses for some members, it would be necessary to communicate with all of them by the 'lowest common denominator', that is, by post. There would not be sufficient time for members to read the communiqué and mail back any proxies, 'It just wouldn't have worked'. When challenged as to whether this was so given that Aurora had sent a detailed letter to ASIC on 11 January 2019, Mr Patton explained:
It's one thing to say we have concerns to the regulator and we believe it's this party. It's another thing in - for a listed entity to shoot off at the hip and put that out in the public domain where it would open itself up for defamation and all manner of things if we've got it wrong.
... ASIC is a regulator, and ASIC can have a look discreetly [sic]; and if there's any merit to it they can prosecute, and if there's no merit to it, they can move on.
Whilst I think there is considerable merit in what Mr Patton says, it seems to me that Aurora just proceeded on the incorrect assumption that the mail out had not been sent until on or after 28 December 2018 and that the meeting was indisputably invalid."
The primary judge did not reject Mr Patton's evidence that if he had received a copy of the notice convening the meeting and the explanatory memorandum at least 21 days prior to 15 January 2019, he would have arranged for Aurora to issue a further communication to all members of ABW addressing the matters in the explanatory memorandum with which Aurora took issue.
Mr Patton's evidence that eight days did not leave sufficient time to prepare the communication and have it served on all the members of ABW in time for those members to receive it and then have sufficient time to consider it properly in advance of the meeting is entirely plausible and was not rejected by the primary judge.
The primary judge's finding that there was "considerable merit" in what Mr Patton said was rather an acceptance of his evidence as to what steps would have been taken had he received the notice of meeting and explanatory memorandum at least 21 days before 15 January 2019. The qualification to the primary judge's acceptance of Mr Patton's evidence was that her Honour found that he was substantially motivated by his incorrect assumption that the mailout had not been sent until after Mr Purcell and Mr Garton Smith inspected Aurora's register on 28 December 2018. That finding is not inconsistent with her Honour's acceptance of Mr Patton's evidence as to what he would have done had he received the documents at least 21 days before the meeting, nor with her Honour's acceptance of Mr Patton's evidence that he considered that the eight-day period which he had was insufficient to prepare the communication which he would otherwise have prepared.
If, contrary to my view, and contrary to the finding of the primary judge, notice was not given to Mr Patton in conformity with ss 252F and 252G, I would accept that the failure to give such notice did give rise to substantial injustice. The prejudice to members of the fund from not having Aurora's response would not be obviated by Aurora's previous stonewalling of Mr Staermose's and Primary's request for the register. But for the reasons I have given, that question does not arise.
It was not until 17 January 2019 that the notice of meeting and explanatory memorandum was received at the offices of Grant Thornton. The document was initially received by a personal assistant to a tax partner on the morning of 17 January 2019 and was handed on the same day to a director of the Audit and Assurance Division of Grant Thornton. According to the affidavits of partners and an employee of Grant Thornton, the address of its Melbourne office was Tower 5, 727 Collins Street, Melbourne. The address Ms Fisher was given was Tower 1, 727 Collins Street, Melbourne. This is the most probable explanation for the delayed receipt of the package by Grant Thornton.
The failure to give a properly addressed notice to the auditor was a procedural irregularity for the same reasons as a failure to give notice to the directors would have been a procedural irregularity.
The issue then is whether the procedural irregularities found by the primary judge and the further irregularity in failure to give notice to the auditor caused substantial injustice.
Aurora adduced no evidence as to what it would have done had the notice been sent to Grant Thornton at the proper address. The notice would have been taken to have been given to Grant Thornton on 24 December (s 252G(4)). 24 December was a Monday. There was no evidence that it was likely that in the ordinary course of post the document, if posted from Perth by ordinary post on the afternoon of Friday 21 December, would have been received at the offices of Grant Thornton by 24 December. In the absence of evidence as to likely time for delivery in the ordinary course of post at that time of the year, it is to be presumed that the document would have been delivered to the offices of Grant Thornton on the seventh working day after 21 December, that is, 4 January 2019 (Evidence Act 1995 (NSW), s 160(1)).
There was no evidence as to whether, if the document had been received at the offices of Grant Thornton on Friday, 4 January 2019, it would have come to the attention of the relevant audit partner, or any other partner or employee of Grant Thornton, who would have then brought the document to the attention of Mr Patton prior to his becoming aware in any event the following Monday. In other words, there is no evidence that if the document had been properly addressed to Grant Thornton, Mr Patton would have received earlier notice than he did receive of the calling of the meeting.
Nor is there any evidence that Grant Thornton would itself have sought to attend the meeting or to arrange for representations to have been made to unitholders. Aurora has not displaced the onus that lies on it pursuant to s 1322(2) to show that the irregularity caused substantial injustice.
As noted above the primary judge found that there was an irregularity in that 25 per cent of members received only 15 days' notice of the meeting and three members received no notice at all (J [118]). Her Honour found that substantial injustice had been or was likely to be caused if the resolutions were permitted to stand for the reasons (J [169]) quoted at [11] above.
Primary did not file a cross-claim seeking relief under s 1322(4). Accordingly, the issues were whether the irregularities identified were procedural irregularities within the meaning of s 1322(2) and, if they were, whether the primary judge erred in finding that they caused substantial injustice. The primary judge was prepared to assume that the irregularities were procedural. Aurora challenged that assumption.
However, the failure to give the required 21 days' notice to 25 per cent of members was clearly a defect of procedure and a deficiency of notice or time. It is true that the meeting was called in the knowledge that there would be deficiencies of notice and time because it was called without access to the current register and with a bare 22-day deemed notice period. There was every likelihood and almost certainty that the actual period of notice would be less than 21 days. It was also anticipated that some members would not receive due notice on the first mailout because Primary was using an old register. The non-compliance with s 252F was deliberate.
Nonetheless, notwithstanding the views of Young J in Re PW Saddington & Sons Pty Ltd (1990) 19 NSWLR 674 at 675, as Sackville AJA observed in Beck v L W Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76; 87 ACSR 672 at [232] "the balance of authority favours the view that an irregularity can include a deliberate act of non-compliance with the articles or the Corporations Act" (citing Nenna v Australian Securities and Investments Commission (2011) 198 FCR 32; [2011] FCA 1193 at 44 [54], 47-48 [76]-[82]).
The giving of only 15 days' notice to 25 per cent of members was not the only irregularity. The primary judge found that no notice was given to three unitholders having 0.06 per cent of the voting rights. But this was a defect for want of notice and a "deficiency of notice" within the meaning of s 1322(1)(b)(ii) and hence a procedural irregularity (Re Testro Bros Consolidated Ltd; Ex parte Attorney-General [1969] VR 199 at 201; Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477 at 493; Re Broadway Motors Holdings Pty Ltd (in liq) (1986) 6 NSWLR 45 at 57).
There is an important distinction between the operation of s 1322(2) and s 1322(6)(c).
Where an application is made under s 1322(4) (and none was made in this case) by virtue of s 1322(6)(c) the court must be satisfied that no substantial injustice has been or is likely to be caused to any person if an order is made declaring the thing purporting to have been done, or the proceeding purporting to have been taken under the Act, not to be invalid by reason of the contravention.
Where the irregularity in question is a procedural irregularity, it does not invalidate a proceeding under the Act, unless the court is of the opinion that the irregularity has caused or may cause a substantial injustice that cannot be remedied by an order of the court and by order declares the proceeding to be invalid (s 1322(2)). In an application under s 1322(4), one of the questions will be whether the making of a validating order would cause substantial injustice, in which case the order cannot be made. Under s 1322(2) the question is whether the procedural irregularity has caused or may cause substantial injustice.
The grounds upon which the primary judge found that substantial injustice had been caused or was likely to be caused if the resolutions were permitted to stand are set out at [11].
The first two matters relied upon by the primary judge, that is, the deliberateness of the contravention, and the choice of the Christmas and New Year holidays for the period of notice, do not in themselves establish that the short period of notice to 25 per cent of unitholders and no notice to three unitholders caused injustice. They would be relevant to any application under s 1322(4), but do not establish a nexus required by s 1322(2) between the procedural irregularity and an injustice.
The fourth ground was as to the lack of information provided to unitholders as to Mr Staermose's and others' engaging in a concerted attempt to remove Aurora. This was unrelated to the procedural irregularity.
The fifth ground was that, if Aurora had received notice in the usual way it would have informed unitholders at length about its concerns regarding Mr Staermose and his clients, and that may have affected how unitholders voted.
If the relevant procedural irregularity were failure to give notice to Aurora or to its directors, then I would agree with that reasoning. But before a causal nexus could be established between the irregularity in giving of notice to unitholders and that identified injustice, Aurora would need to establish that had such notice been given to members on 21 December 2018 (which may, in any event, not have reached members until towards the end of the first week of January 2019) at least one member would have brought the notice to Aurora's attention at a sufficient time before 7 January 2019 that would have permitted Mr Patton to have prepared that communication.
There was no evidence from any member who was only given 15 days' notice (or any of the three members who were given no notice at all), that had they been given the prescribed period of notice they would have brought it to Aurora's attention. It cannot be assumed that they would have done so. Unitholders could rather expect that Aurora would have received the notice at or about the same time as the member received it.
The third ground relied on by the primary judge was that "in the result" less than half of unitholders participated in the meeting either in person or by proxy. "In the result" does not mean "as a result". Nor was there evidence that the result of the deficiency of notice was that either less than half of unitholders participated in the meeting, or indeed, that any unitholder who would otherwise have participated but for the deficiency of notice did not do so.
Were it necessary, I would uphold Primary's challenge to the primary judge's conclusion that the failure to give the requisite notice to 25 per cent of members caused substantial injustice.
In oral submissions Aurora did not put the matter so high. It did not submit that Primary was aware of the facts that the primary judge found were established. It put the matter more widely. It submitted that Primary had information that ought to have alerted it to the asserted fact that Mr Staermose, Wonfair, and other members of the fund who between them controlled 38 per cent of the votes were acting in concert to remove Aurora in contravention of Ch 6. Aurora submitted that the primary judge ought to have found that Mr Garton Smith suspected that there was a relevant agreement between unitholders who were acting in concert which may have an impact on the rights of all members.
Aurora relied in part on findings made by the primary judge and in part upon a document sent by Mr Purcell to Mr Garton Smith at 10:02am on 20 December 2018 attaching an analysis by Mr Staermose on "where votes lie based on who he has talked to".
The first matters relied upon are the communications between Mr Purcell and Mr Garton Smith on 16 and 17 October 2018 ([32] and [33] above) whereby Mr Purcell informed Mr Garton Smith that a significant number of unitholders wanted to call a meeting to seek the removal of Aurora as responsible entity and that the two largest unitholders, Mr Staermose and Wonfair, wanted to see the responsible entity replaced and it was believed that more than 40 per cent of the register would be interested in the motion being brought (J [46] and [47]).
The primary judge found that Mr Purcell's email of 16 October 2018 did not cause Mr Garton Smith to consider that this might be a control event under Ch 6 and his interest was in Primary's becoming responsible entity so that it could thereby earn fees and assist unitholders (J [46]). This was an acceptance of Mr Garton Smith's evidence to that effect and not merely a recitation of that evidence.
The next matter relied on was an email from Mr Purcell to Mr Garton Smith of 29 November 2018 in which Mr Purcell said he was keen to keep whatever momentum they had as it was "difficult keeping everyone committed to this path" (J [54]). The primary judge found that the email suggested to her Honour that Mr Staermose was working together with other members who had all agreed to work towards removing Aurora, but accepted Mr Garton Smith's evidence that he did not see this as a significant statement in terms of a control event, but simply as Mr Purcell wanting to move Primary along (J [54]).
The primary judge inferred from Mr Purcell's proposal that they use the "ABW register we have from Tim's last inspection" that Mr Rigoni had provided the register he had obtained from Aurora in September 2016 to Mr Staermose. There was no finding and we were not taken to any evidence that Mr Garton Smith knew of that.
Aurora relied upon the spreadsheet prepared by Mr Staermose referred to at para [160] above forwarded to Mr Garton Smith on 20 December 2018. The spreadsheet set out Mr Staermose's "best guess of major unitholders in ABW following redemption since Aurora became RE". Under the column marked "votes I am counting on" and marked green, Mr Staermose listed 20.436 per cent of the votes comprising his and Wonfair's units with the notation "me, Wonfair currently able to 'creep' three per cent". In that column in green he also listed "CLT" (Mr Tan), "CMDP" (part of a nominee holding), Mr Rigoni, Solano and a Mr Fraser.
Against these persons he attached a note "my client" and "I have an advisory relationship".
Aurora submitted that this informed Primary that some other members of the fund were at least expected to vote together on the issue which would give rise to a suspicion that they were acting in concert. However, as was pointed out during the course of oral submissions, the statement that "me, Wonfair currently able to 'creep' three per cent" indicates to a reader that the person preparing the spreadsheet is conscious of the restrictions and prohibitions in Ch 6. Contrary to Aurora's initial submission, the reference to the advisory relationship does not imply an agreement between advisor and client, as distinct, perhaps, from an expectation on the part of the advisor that the client will act on advice.
This is as high as the evidence goes as to the state of Primary's asserted knowledge, or suspicion, or reason to suspect that Mr Staermose, Wonfair together with certain of Mr Staermose's clients and Mr Rigoni were acting together in a covert and concerted attempt to remove Aurora as responsible entity. The evidence does not establish that Primary either knew of or actually suspected such concerted action.
It would not be reasonable for unitholders to expect that Primary, who described itself to unitholders as an independent party, would disclose in the explanatory memorandum matters of suspicion, particularly matters that were not directly relevant to the merits of the proposed resolutions. Unitholders might expect that if sufficient evidence of action taken in breach of Ch 6 were available, it would be reported to ASIC, but not that it would be disclosed in the explanatory memorandum. Indeed, Mr Patton reported to ASIC on 11 January 2019 concerns that he had in relation to an apprehended association between Mr Staermose and Wonfair, and parties he said were associated with Mr Staermose, including Mr Tan and Solano, and stated to ASIC that it appeared that the calling of the meeting was a "control event".
When cross-examined as to why he did not raise those concerns with unitholders prior to the meeting of 15 January, Mr Patton said, amongst other things, that one reason was that the fact that Aurora had concerns was not a sufficient basis to make an accusation.
Unitholders could not reasonably expect Primary to disclose to members mere suspicions, even if they had been held, let alone to make disclosure of facts that might or should give rise to suspicion of illegal behaviour.
I agree with the primary judge's conclusion that the explanatory memorandum was not misleading by omission. The question whether any statutory relief would have been available if breach of the relevant statutory provision had been established does not arise.
Further, for the reasons at [144]-[146], a different question as to "substantial injustice" arises in relation to s 1322(2) than 1322(6)(c). In the latter case, a question that would have to be addressed, if leave to amend were granted, would be whether Primary had demonstrated that no substantial injustice had been or was likely to be caused to any person if a validating order were made. This is a wider enquiry than the enquiry under s 1322(2) as to whether a procedural irregularity has caused a substantial injustice. If that enquiry were raised, then for the reasons already given (at [131], [132], [148], [150] and [151]), I agree with the primary judge that a substantial injustice would arise if the resolutions were permitted to stand. Allowing the amendment would not alter the result of the appeal.
For these reasons I propose the following orders:
1. Refuse the appellant leave to file a further amended notice of appeal.
2. Order that the appeal be dismissed with costs.
This was the first basis upon which the primary judge held that the meeting and resolutions were valid.
At least 21 days' notice of the meeting was required to be given to members (s 252F). The primary judge found that 75 per cent of members received 21 days' notice of the meeting, a further 25 per cent of members received 15 days' notice and three members received no notice at all (J [118]).
Section 1322 of the Corporations Act relevantly provides:
"1322 Irregularities
(1) In this section, unless the contrary intention appears:
(a) a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and
(b) a reference to a procedural irregularity includes a reference to:
(i) the absence of a quorum at a meeting of a corporation, at a meeting of directors or creditors of a corporation, at a joint meeting of creditors and members of a corporation or at a meeting of members of a registered scheme; and
(ii) a defect, irregularity or deficiency of notice or time.
(2) A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid.
(3) A meeting held for the purposes of this Act, or a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such a meeting, is not invalidated only because of the accidental omission to give notice of the meeting or the non‑receipt by any person of notice of the meeting, unless the Court, on the application of the person concerned, a person entitled to attend the meeting or ASIC, declares proceedings at the meeting to be void.
...
(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;
...
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(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
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(c) in every case - that no substantial injustice has been or is likely to be caused to any person."
The primary judge concluded that because the required notice had not been given and for the reasons referred to in the passage quoted below, substantial injustice had been or was likely to be caused if the resolutions were permitted to stand as the result of procedural irregularities. Those reasons were identified as follows (at J [169]):
"(a) The failure to give the required 21 days' notice to 25% of the members of ABW was the result of a decision by those calling the meeting to use an old register, which they appreciated would likely result in some members not receiving adequate notice and create a risk that the meeting would be held to be invalid.
(b) The notice was given, deliberately it seems to me, over the Christmas and New Year period when, offices are usually closed and people are often not at home to open their mail.
(c) In the result, less than half of ABW's members participated in the meeting, either in person or by proxy.
(d) Of those who did participate in the meeting, some three-quarters comprised a Hong Kong adviser and his clients and other members who were acting together in a concerted attempt to remove the responsible entity. I think this was a relevant matter for other members to know and they weren't told about it.
(e) I think there is no doubt that if Aurora had received notice in the usual way, then it would have informed ABW members at length about its concerns regarding Mr Staermose and his clients. Whether ABW's members would, having been so informed, have voted the same way is not known, but they weren't given the chance to make a choice in light of such information as matters unfolded."
This was the second basis upon which the primary judge found that the meeting and resolutions were invalid.
Primary challenges the primary judge's findings on both bases.
By a notice of contention Aurora seeks to uphold the primary judge's decision on grounds additional to those upon which the primary judge relied. Aurora contends that the primary judge ought also to have found that the notice of meeting and explanatory memorandum were not sent to the directors and to its auditor within 21 days of the meeting, and that this was a substantive irregularity, or, alternatively, was a procedural irregularity that caused substantial injustice.
Aurora also submits that by itself, and irrespective of other findings, the primary judge's finding that 25 per cent of members received 15 days' notice and three members received no notice at all should have been characterised as a substantive and not a procedural irregularity to which s 1322(2) of the Corporations Act did not apply and that the meeting was invalid on that additional ground.
Aurora also contended that the primary judge ought to have declared that the meeting was invalid on the additional ground that the explanatory memorandum was misleading and deceptive, contrary to s 18 of the Australian Consumer Law and/or s 1041H of the Corporations Act or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) by not disclosing that two members, Mr Tim Staermose and Wonfair Investments Pty Ltd ("Wonfair"), together with some of their clients, and a Mr Michael Rigoni, collectively held about 36.5 per cent of the units in the fund and were acting together in a covert and concerted attempt to remove Aurora as responsible entity.