RE CELSIUS RESOURCES LTD; EX PARTE CELSIUS RESOURCES LTD [2026] WASC 45 (24 February 2026)

(a) two affidavits of Melissa Jane Catto, a lawyer employed by the plaintiff's solicitors, filed 3 and 6 February 2026;

(b) an affidavit of Aaron Philip Gates filed 5 February 2026. Mr Gates is a manager at Automic Group and has undertaken the role of chief financial officer of Celsius since August 2025;

(c) an affidavit of Neil Grimes filed 5 February 2026. Mr Grimes has been an executive director of Celsius since June 2025, and was appointed as a director on 17 March 2025; and

(d) an affidavit of Kelly Anne Davis filed 5 February 2026, who is the current company secretary of Celsius, having been in that position since 2023.

1. In deciding this application, I have had the significant benefit of a detailed written outline of submissions, as well as oral submissions from counsel who appeared before me this morning.
2. On the evidence before me, I am satisfied that notice of the application has been given to Australian Securities and Investments Commission (ASIC) and the Australian Securities Exchange (ASX).[1] ASIC neither consents nor opposes the application, and did not seek to be heard on the application this morning.

1. It is important to stress at the outset that none of the current officers of Celsius were employed or involved with the company at the time of these events. Given this, most of the evidence that has been adduced in support of the application is based on the historical records of Celsius, although the company received today a letter from its former company secretary providing some further background to the application.[2]
2. Celsius is an Australian public company whose shares are listed on the ASX. It is a copper and gold mining company with a portfolio of copper and gold projects in the Philippines. As at 2 February 2026, Celsius had almost 3.25 billion shares on issue, and a market capitalisation of approximately $71.31 million based on the closing price as quoted by the ASX on 30 January 2026.[3]
3. On 27 November 2007, BDO was appointed as Celsius' auditor. At an annual general meeting of Celsius held on 30 November 2011, following a competitive tender process, the majority of shareholders voted in favour of a resolution appointing RSM Australia Partners (RSM) as the auditor of Celsius for the purposes of s 327B of the Act.[4]
4. At that time, Celsius did not make any specific ASX announcement about the change in its auditor, although the results of the meeting were the subject of an ASX announcement. Critically, no evidence was adduced that ASIC's consent to the resignation of BDO was sought, nor was a Form 315 lodged with ASIC, notifying it of BDO's resignation and the appointment of RSM as its auditor.
5. Since November 2011, RSM has acted as Celsius' auditor. This is clear from all of the half year and annual reports that Celsius has issued over this time.[5]
6. Between 3 January 2013 and 19 November 2025, Celsius has undertaken a number of share issues, set out in the annexure to the amended application. At the time of all of these share issues, Celsius lodged a cleansing notice with the ASX (Cleansing Notices).[6]
7. All of the cleansing notices (apart from two) stated that, at the date of its issue, Celsius was in compliance with the provisions of ch 2M of the Act as they applied to the company. Celsius now believes, as a consequence of the issue concerning its auditor, that this statement may be incorrect. Two of the cleansing notices (issued on 7 May 2015 and 22 May 2015) did not contain this statement and, as a result, did not comply with the requirements of s 708A(6)(d) of the Act.
8. Between October 2025 and January 2026, RSM and Celsius had discussions regarding RSM's intention to resign as auditor of Celsius. In this period, Celsius made arrangements for the appointment of Grant Thornton as its auditor, which was to take effect upon RSM's resignation.[7]
9. RSM sought the approval of ASIC to its resignation, and on 29 January 2026, Mr White of RSM received an email from ASIC notifying him that the application was not approved. This was because ASIC's records showed that BDO was still the auditor of Celsius.[8]
10. As a consequence of this, on 30 January 2026, Celsius engaged Hamilton Locke to advise it on the validity of BDO's resignation, and RSM's appointment as Celsius' auditor.[9]
11. On 2 February 2026, Celsius went into a trading halt and, subsequently, its shares have been suspended from trading.[10]
12. These proceedings were commenced on 3 February 2026.

1. Chapter 2M of the Act is entitled 'Financial Reports and Audit'. The process for the appointment and removal of auditors is set out in part 2M.4 of the Act.
2. Pursuant to s 324AA(1) of the Act, an individual firm or company may be appointed as auditor of the company. Relevantly, this subsection also provides that a company may have more than one auditor.
3. Section 329 of the Act deals with the resignation and removal of auditors. Pursuant to s 329(5), an auditor may, by notice in writing, resign as auditor when notice of the resignation is given to ASIC, and ASIC's consent is applied for and obtained. Where a company has received notice of resignation of its auditor, the company is required, under s 329(11), to lodge with ASIC notice of the resignation in the prescribed form.
4. Where there is a vacancy in the office of auditor, pursuant to s 327B(1B), a public company must appoint an auditor to fill the vacancy at each annual general meeting subsequent to the company's first general meeting.
5. On the evidence before me, I make the following findings of fact.

(a) I infer that BDO gave notice of its intention to resign as auditor of Celsius prior to the 2011 annual general meeting.

(b) The consent of ASIC was not sought to the resignation, nor was the requisite form lodged with ASIC within 14 days.

(c) At the 2011 AGM, the shareholders of Celsius resolved to appoint RSM as auditor. The appointment of RSM was done in compliance with s 327B of the Act.

1. In its amended originating process, Celsius seeks two sets of declarations under s 1322(4)(a) of the Act. The first seeks to validate RSM's appointment and BDO's resignation as auditor on 30 November 2011, and to validate all financial reports prepared and lodged by Celsius since 30 November 2011.
2. The second seeks to validate the cleansing notices that have been issued by Celsius between 3 January 2013 and 19 November 2025. Specifically, the plaintiff seeks a declaration that any offer for sale, or sales, of its securities are not invalid by reason of the failure to issue a cleansing notice, and the consequent failure to comply with the relevant provisions of the Act.
3. I note the prescriptive requirements of s 1322(4)(a) of the Act have been satisfied in respect to the declarations sought in that:

(a) the proposed validation orders are framed in a declaratory form;

(b) the act, matter, or thing has been identified; and

(c) the contravention has been identified.

1. In respect of the remaining orders that are sought by the plaintiff, I accept that these orders flow as a natural consequence from the declarations that are sought.

1. Counsel for Celsius submitted that the preconditions in both s 1322(6)(a)(ii) and (iii) were satisfied in this case. I accept this submission.
2. On the evidence before me, I accept that, while there is no direct evidence as to the circumstances which led to the failures to comply with the Act in relation to the resignation of BDO, Mr Matic, the former company secretary of Celsius, believes this was an administrative oversight. In circumstances where RSM was appointed as auditor following a competitive tender process, and their appointment was the subject of a resolution at the 2011 AGM of Celsius, I accept this evidence and find that the contravention was an oversight, and there was no failure on the part of any company officer to act honestly. I also accept that, given the length of time that has passed and the fact that all parties have proceeded on the basis that RSM has been validly appointed as Celsius' auditor, that it would be just and equitable to make the orders sought.
3. In my view, the making of the orders sought by the plaintiff would be consistent with the public policy of ch 2M of the Act, which is to ensure that public companies appoint independent auditors to audit the company's accounts, and that audited accounts are lodged within the timeframes specified in the Act. Granting the relief sought will remove any doubt as to the compliance by the plaintiff with its financial reporting obligations, and the potential impact on the company's operations.
4. In respect of the Cleansing Notices, the issue in respect of these notices arises from the failure to comply with pt 6D.2 of the Act, which imposes disclosure obligations on corporations in relation to the issue and sale of quoted securities. In certain circumstances the disclosure obligations can be satisfied by the lodgement of a cleansing notice (s 708A(5)). The cleansing notice exception can only be relied upon if the preconditions in s 708A(5) of the Act are met. Section 708A(6) sets out the requirements of a valid notice. Relevantly, this includes the obligation for the notice to state that, as at the date of the notice, the company has complied with 'the provisions of ch 2M as they apply to the body' (s 708A(6)(d)). If disclosure has not been made by the issuer and shares are on-sold within 12 months, the party to whom the shares are issued may be obliged to make disclosure.[11]
5. In relation to these notices, Celsius seeks a declaration that the Cleansing Notices were effective when given, and that any offer for sale or sale of securities will not be invalid by reason of the failure to issue a cleansing notice and the consequent failure to comply with s 707(3) of the Act.
6. I accept that Celsius' conduct, in incorrectly stating in the Cleansing Notices were in compliance with ch 2M of the Act or, in relation to two of the notices, by failing to include this statement, was inadvertent and was not done in blatant disregard of its obligations under the Act. In my view, I do not consider the public policy will be undermined by granting the relief sought.[12]

Will making the orders cause any substantial injustice?

1. In considering whether there would be any substantial injustice if the orders sought are made, I have considered the classes of persons who may be impacted by the making of these orders.
2. In relations to the declarations concerning the resignation of BDO as auditor, these classes of persons include the plaintiff, the shareholders of the plaintiff, as well as BDO and RSM.
3. For the following reasons, I do not consider any substantial injustice would be caused by the making of the declarations and, in fact, consider the reverse to be the case.
4. First, I accept that if the orders sought are not made, there may be substantial injustice to each of the plaintiffs, its shareholders, and its past and present auditors. In the event that BDO's resignation and RSM's appointment is not validated and a complaint is raised about the work that has been done, it is possible a legal issue could be raised as to who is responsible and liable at law for the work that has been done, and whether the work is covered by professional indemnity insurance.
5. Second, there would be prejudice to the recipients of the share issues that are the subject of the Cleansing Notices if the orders sought are not made, as any future sales of these shares may be void or voidable. Alternatively, the consequences can be that recipients, particularly in relation to the share issues that have occurred in the last 12 months, may be prevented with dealing with their assets for a 12‑month period through no fault of their own. I infer, given the length of time concerned in relation to the matters the subject of this application, that it is almost certain that at least some of the shares associated with the Cleansing Notices have been sold, and it cannot be discounted that there have been resales of these shares. In these circumstances, it is my view that it would be appropriate to make the orders sought to remove any question as to the title or validity of these shares.
6. Third, unless the orders are made, there will be ongoing prejudice to Celsius in continuing to have concerns about the issues that have been raised, and the possibility of future action, and that it may be required to stay involved.
7. Finally, in relation to Celsius's shareholders more broadly, the failure to comply with the relevant provisions of the Act has caused Celsius to have its shares suspended from trading. If orders are not made by the court, all shareholders will not have the benefit of an active market for their shares.

Should the court exercise its discretion to grant the relief sought?

1. In exercising the court's discretion to grant relief, a relevant factor is the promptness with which Celsius has sought to remedy the irregularity once it has been identified.
2. The evidence before the court, which I accept, is that Celsius first became aware of these issues on 29 January 2026. Since that time, it has sought for its shares to be suspended from trading, and lodged the application on 3 February 2026, with a hearing occurring today, some seven to eight days after the issue was first drawn to their attention. In these circumstances, I am satisfied that Celsius and its advisors have worked extremely diligently to remedy the irregularities, including by seeking the urgent hearing today.
3. On the evidence before me, I accept and find that there is no evidence of any substantial misconduct, serious wrongdoing, or flagrant disregard of the Act that would warrant the exercise of the discretion to refuse the relief sought.
4. There is nothing in the evidence before me that would suggest any minority interest might be oppressed by the orders, or that any other interest could be affected.
5. I am satisfied that shareholders, ASIC, and the ASX have been notified of the issue that has arisen, and given notice of the application. No one has sought to be heard on the application, or to intervene at the hearing today.
6. Finally, it is my view that public policy would not be undermined by granting the relief sought,[13] and in these circumstances, consider it is appropriate to make declarations sought in the form discussed with counsel during the hearing.

Should orders be made to relieve Celsius from civil liability?

1. The orders sought under s 1322(4)(c) are to relieve Celsius, as well as its current and former directors and officers, from any civil liability arising out of the contravention of the Act.
2. Section 1322(4)(c) permits the court to make an order for a broad range of contraventions or failures, subject to the conditions in s 1322(6), that the person concerned acted honestly, and that no substantial injustice has been or is likely to be caused to any person.[14]
3. A precondition to the making of an order under s 1322(4)(c) is that the person to be relieved from civil liability acted honestly.[15]
4. Counsel for Celsius submitted that the relevant parties acted honestly throughout the relevant period. On the basis of the evidence before the court, it is clear that Celsius, at all times, believed the requirements of the Act had been complied with. As indicated earlier, I accept the contravention has arisen as a result of inadvertence or oversight, and that there is no evidence that Celsius, or its current or former directors or officers, acted dishonestly. I also accept the relief sought by Celsius is appropriately confined to the specific omissions that caused the contraventions.
5. For these reasons, I consider it is appropriate that Celsius and its current and former directors and officers be relieved of any civil liability arising out of the contraventions of the Act for the omission identified by Celsius.

1. In relation to the costs of the application, Celsius says that the appropriate order is that there be no order as to costs. In my view, this is the appropriate costs order in the circumstances of this application.
2. I also accept that the ancillary orders sought by the plaintiff in terms of service of the court's orders, publication of an announcement on the ASX, and the allowance for any aggrieved party to apply to this court to vacate or vary these orders within 28 days, protect both ASIC's position, as well as any shareholders of Celsius, from any possible prejudice that could arise from the making of orders on this application.
3. For these reasons, subject to the amendments discussed with counsel, I consider it is appropriate to make orders broadly in terms of the amended originating process.[16]

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

[1] Affidavit of Melissa Jane Cato filed 3 February 2026 [14], 'MJC-128', 'MJC-129'.

[2] Affidavit of Melissa Jane Catto dated 6 February 2026, 'MJC-13'.

[3] Affidavit of Melissa Jane Catto filed 3 February 2026 [5] - [6], [11].

[4] Affidavit of Melissa Jane Catto filed 3 February 2026 [8b], [12a], 'MJC-9'.

[5] Affidavit of Melissa Jane Catto filed 3 February 2026 [12c] - [12d], [MJC-10] - [MJC-37].

[6] Affidavit of Melissa Jane Catto filed 3 February 2026, 'MJC-38' - 'MJC-123'.

[7] Affidavit of Aaron Phillip Gates filed 4 February 2026 [15], [19], [23], [27] - [29], 'APG-8', 'APG-9'.

[8] Affidavit of Aaron Phillip Gates filed 4 February 2026 [31], 'APG-11'.

[9] Affidavit of Melissa Jane Catto filed 3 February 2026 [10].

[10] Affidavit of Melissa Jane Catto filed 3 February 2026 [13], 'MJC-126'.

[11] Corporations Act 2001 (Cth) s 707(3). See also Re Golden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17.

[12] See Re Caeneus Minerals Ltd [2018] FCA 560 [39] ‑ [40]; Re Classic Minerals Ltd [2018] FCA 2039 [35] ‑ [36].

[13] See Re Caeneus Minerals Ltd [2018] FCA 560 [39] ‑ [40]; Re Classic Minerals Ltd [2018] FCA 2039 [35] ‑ [36].

[14] Re Murray River Organics [2019] FCA 931; (2019) 138 ACSR 365 [28].

[15] Corporations Act 2001 (Cth) s 1322(6)(b).

[16] At the conclusion of the hearing, orders were made in terms of Annexure A.