RE MATADOR MINING LTD; EX PARTE MATADOR MINING LTD [2021] WASC 132 (4 May 2021)

1. Matador is an Australian public company which was incorporated on 28 June 2016 and whose securities are quoted on the Australian Securities Exchange (ASX).[2] Matador is a gold exploration company, focused on the exploration and development of the Cape Ray Gold Project in Newfoundland, Canada.[3]
2. As at 4 March 2021 (being the last day on which Matador's shares were traded before entering a trading halt), Matador had 173,646,309 shares on issue and a market capitalisation of approximately $52.1 million.[4] As at 10 March 2021, Matador had 1,509 shareholders.[5]

1. In December 2019, the directors of Matador resolved to appoint Bentleys as its auditor in place of Walker Wayland WA Audit Pty Ltd (Walker Wayland). This decision was made for a number of reasons, including an expansion in the scale of Matador's activities.[6]
2. On 8 January 2020, Matador received a written engagement letter from Bentleys relating to the audit for the year ending 30 June 2020 and review of its financial statements for the half year ending 31 December 2019.[7]
3. On 24 January 2020, ASIC provided written consent to Walker Wayland's request to resign as auditor.[8]
4. Following receipt of ASIC's consent, on 3 February 2020, Walker Wayland formally resigned as Matador's auditor.[9] On the same date, an announcement was made to the ASX regarding the change of auditor.[10] The ASX announcement noted that Bentleys' appointment was effective from that date and that Bentleys would hold the office of auditor until the next annual general meeting, at which 'shareholder approval would be sought for their reappointment and continuation as auditor'.[11]
5. On 29 September 2020, Matador lodged its annual report for the year ended 30 June 2020 with the ASX. The annual report listed Bentleys as Matador's auditor and contained an independent auditor's report of Bentleys, the standard auditor's sign‑off, and the auditor's independence declaration signed by Bentleys.[12]
6. Mr Stuart McKenzie, Matador's joint company secretary, was responsible for preparing the notice of meeting for the 2020 annual general meeting. At that time, Mr McKenzie did not:[13]

(a) procure that a shareholder nominate Bentleys as auditor in accordance with s 328B(1) of the Act; and

(b) include in the notice of meeting a resolution seeking shareholder approval of Bentleys' appointment as auditor pursuant to s 327B(1) of the Act.

1. Mr McKenzie's evidence was that in preparing the notice of meeting for the 2020 annual general meeting, he overlooked the requirement to procure a nomination or include a resolution for shareholders to approve Bentleys as auditor.[14] Although he was familiar with the requirement for auditors to be approved at annual general meetings, Mr McKenzie deposed that his failure to include these matters was an inadvertent error.[15]
2. Mr Ian Murray was appointed executive chairman of Matador on 14 May 2020. At the time of his appointment, he was not aware that the company's auditor had changed from Walker Wayland to Bentleys in February 2020 and did not raise this matter when suggesting amendments to the draft notice of meeting.[16] After the draft notice was reviewed by Mr Murray, it was circulated to the other directors of Matador for approval. None of the other directors raised any query about whether the notice of meeting should contain a resolution for the appointment as Bentleys as auditor.[17] The draft notice was also submitted to the ASX for its review, who confirmed it had no objection to the draft notice.[18]
3. Matador's 2020 annual general meeting was held on 28 November 2020. A representative of Bentleys attended the annual general meeting.[19] The matter of the appointment of Bentleys as auditor and the audit itself was not raised at the annual general meeting and no questions were asked of the representative from Bentleys.[20]
4. At the 2020 annual general meeting, as a result of the omission from the notice of meeting, the shareholders of Matador did not resolve to appoint Bentleys as auditor. As a consequence, by reason of s 327B(1)(b) of the Act, Bentleys ceased to be auditor of Matador at the conclusion of the 2020 annual general meeting.
5. Since the beginning of the financial year ending 30 June 2021, the directors of Matador have not resolved to appoint Bentleys to fill the casual vacancy that arose as a matter of law.
6. On 29 January 2021, Bentleys issued a separate letter of engagement for its audit and review services for the financial year ending 30 June 2021 (including the review for the half year ending 31 December 2020).[21] The half year accounts were due to be lodged on 16 March 2021.
7. On 2 March 2021, Mr McKenzie became aware of Matador's failure to appoint Bentleys after reading an announcement published by Bellevue Gold Ltd, which disclosed its request for a trading halt after discovering the inadvertent failure to appoint an auditor at its annual general meeting. The announcement also referred to issues with cleansing notices that had been lodged with the ASX.[22]
8. On reading this announcement, knowing that Matador had changed its auditor to Bentleys in February 2020, Mr McKenzie reviewed the notice of meeting for the 2020 annual general meeting and realised that no resolution to approve the change of auditor had been put to shareholders at the annual general meeting.[23]
9. On 2 March 2021, Mr McKenzie and Matador's chief financial officer informed Mr Chris Nicoloff, an audit partner of Bentleys, of the issue. Mr Nicoloff confirmed that Bentleys had been unaware of the oversight and encouraged Matador to contact its solicitors.[24]
10. On 3 March 2021, Matador sought advice from its solicitors. Matador's solicitors asked if Matador had issued any cleansing notices pursuant to s 708A(5) of the Act for shares issued since the appointment of Bentleys as auditor. Mr McKenzie indicated Matador had not lodged any cleansing notices over this period.[25]
11. On 4 March 2021, Matador's solicitors informed Mr McKenzie that there had been several instances where Matador had failed to lodge cleansing notices and/or prospectuses and that it was necessary to seek a trading halt.[26]
12. On 5 March 2021, Matador applied for and obtained a voluntary trading halt of its securities.[27]
13. On 12 March 2021, Matador:

(b) by its solicitors, notified both ASIC and the ASX of the company's non-compliance with the Act and informed them that proceedings had been commenced in this court.[28]

1. Following the discovery of the error in the appointment of the auditor, the company's solicitors and Matador undertook a review of all of the share issues that had occurred since the appointment of Mr McKenzie as company secretary on 1 February 2019. This review disclosed that between October 2019 and February 2021, there had been eight occasions on which shares had been issued after conversion of options but a cleansing notice had not been issued.[29]
2. Mr McKenzie has reviewed extracts of Matador's share register to determine whether any of these shares have been on‑sold. His evidence is that some of the shares in five of these share issues have been on‑sold.[30]

1. On 14 October 2019, Matador issued 250,000 shares to a former advisor of Matador following the conversion of options (October 2019 Share Issue).[31] The options were exercisable at $0.20 per share on or before 7 November 2019. The terms of the options were set out in Matador's replacement prospectus for its initial public offering dated 22 December 2016 (Replacement Prospectus) and were issued without disclosure.[32] No cleansing notice was lodged at the time the shares were issued.[33]
2. Mr McKenzie's evidence is that he did not realise that disclosure of the options in Matador's Replacement Prospectus was insufficient to satisfy the company's disclosure obligations under s 702A of the Act and was not aware that a cleansing notice should have been issued at the time the shares were issued.[34] Mr McKenzie deposes that his failure to lodge a cleansing notice for the October 2019 Share Issue was an inadvertent oversight.[35]

Share issues following April 2019 capital raising

1. In April 2019, Matador sought to raise approximately $5 million by way of a placement at $0.16 per share with one free attaching option at an exercise price of $0.23 each, expiring 3 years from the issue date (Attaching Options) (April Placement).[36]
2. Between October 2020 and January 2020, Matador issued shares to a number of parties following conversion of the Attaching Options. Specifically:

(a) On 23 October 2020, Matador issued 277,500 shares to CPS Capital No. 4 Pty Ltd and YCAGAGF Investments Pty Ltd (October 2020 Issue).[37] No cleansing notice was lodged when the shares were issued.[38] A number of these shares have subsequently been on-sold.[39]

(b) On 2 November 2020, the plaintiff issued 100,000 shares to Blue Trader Holdings Pty Ltd (First November 2020 Issue),[40] a number of which have been on-sold.[41] On 12 January 2021, Mr McKenzie lodged an Appendix 2A form in respect of these shares, which was outside the five business day period required by s 708A(6) of the Act.[42] The Appendix 2A form did not record the correct date of the share issues of 2 November 2021 and incorrectly stated the date of the share issue as 6 January 2021.[43] Mr McKenzie deposes that this was a mistake and that this was the date he became aware of the problem.

(c) On 16 November 2020, the plaintiff issued 100,000 shares to Vertical Light Pty Ltd (Second November 2020 Issue).[44] These shares have not been on‑sold.[45] On 19 November 2020, Matador lodged an Appendix 2A form in respect of the Second November 2020 Share Issue when, for the reasons set out at [33], it was not entitled to.[46]

(d) On 24 November 2020, Matador issued 62,500 shares to OGA Enterprises Pty Ltd (Third November 2020 Issue),[47] all of which have subsequently been on‑sold.[48] On the same date, Matador lodged an Appendix 2A form and cleansing notice. On 11 March 2021, Matador withdrew this cleansing notice for the reasons set out at [33] below.[49]

(e) On 13 January 2021, Matador issued 50,000 shares to Titan Recruitment Pty Ltd.[50] None of these shares have been traded.[51] On the same date, Matador lodged an Appendix 2A form in respect of these shares.[52]

(f) On 15 February 2021, Matador issued 1,562,500 shares to Samoz Pty Ltd (February 2021 Issue),[53] some of which have subsequently been on-sold.[54] Matador lodged an Appendix 2A form in respect of the February 2021 Issue on that same date.[55]

1. On 22 January 2021, Matador issued 452,550 shares to Ms Tara Elizabeth Kiley and Mr Adam Lee Kiley as trustees for the Kiley Super Fund and Ms Julie‑Anne Ingram (Second January 2021 Issue). These shares were issued following the conversion of options issued under Matador's Employee Securities Inventive Plan.[56] These shares have not been on-sold.[57]
2. In respect of each of the October 2020 Issue, the First November 2020 Issue, the Second November 2020 Issue, the Third November 2020 Issue, the First January 2021 Issue, and the Second January 2021 Issue, Matador was unable to lodge a cleansing notice as the company had been suspended for more than five days in the 12 month period prior to each of the respective dates of issue.[58] Mr McKenzie deposed that at the time of each of these share issues, he was aware that Matador was unable to lodge a cleansing notice which meant that a cleansing prospectus was required. In relation to each of these share issues, Mr McKenzie's evidence was that he omitted to advise the directors of Matador that a cleansing prospectus should have been prepared and lodged and that the omission was an inadvertent oversight.[59]
3. In respect of the 15 February 2021 Issue, Mr McKenzie's evidence is that Matador did not lodge a cleansing notice on 15 February 2021 when the company was entitled to do so. Mr McKenzie deposes that the failure to issue a cleansing notice was inadvertent.[60]

1. On 17 February 2020, Matador announced it had undertaken a share placement of 21.2 million shares to raise $5.2 million.[61]
2. On 25 February 2020, Mr McKenzie lodged a cleansing prospectus with ASIC and the ASX.[62] It was necessary for Matador to prepare a cleansing prospectus as the company's shares had been suspended from trading for a period of nine days between 5 February 2020 and 17 February 2020.[63] On the same date, Matador lodged an Appendix 2A seeking quotation of the shares which were the subject of the placement as well as the 100 shares the subject of the cleansing prospectus.[64]
3. On 18 May 2020, Matador issued 100 shares to Mr McKenzie pursuant to the cleansing prospectus.[65] Mr McKenzie's recollection is that he paid $20.00 in cash for these shares which was not deposited into a separate bank account but was paid by him to the accounts payable team. No receipt was issued by Matador for this amount.[66]

1. In early June 2020, the share price of Matador increased from $0.25 to $0.31.[67] At that time, Matador had a large number of options that had not been exercised but were 'in the money'. As a consequence, Matador expected that a number of these options would be exercised.[68] These options were not issued with a disclosure statement and Mr McKenzie recommended that a cleansing prospectus be prepared and lodged in anticipation of the exercise of the options.[69]
2. On 15 June 2020, Matador issued a cleansing prospectus, once again for the issue of 100 shares.[70] At the same time, Mr McKenzie lodged an Appendix 2A, which covered shares that had been issued by Matador following its receipt of an exercise notice for the options.[71] However, the Appendix 2A did not include the 100 shares that were the subject of offer in the cleansing prospectus.[72] No applications were received for these shares and, accordingly, none were issued.[73]

1. On 8 July 2020, Matador announced that it had issued approximately 21.43 shares by way of a placement to raise $8.7 million.[74]
2. On the same date, Matador issued a cleansing prospectus, for the issue of 100 shares,[75] together with an Appendix 2A which covered the shares that had been issued under the placement.[76] However, once again, this Appendix 2A did not include the 100 shares that were the subject of the cleansing prospectus.[77]
3. Mr McKenzie applied for and on 2 October 2020 was issued the 100 shares, the subject of the July prospectus.[78] Mr McKenzie's recollection is that he paid $40.50 in cash for these shares which was not deposited into a separate bank account but was paid to the accounts payable team. No receipt was issued by Matador for this amount.[79]
4. On 2 October 2020, an Appendix 2A was lodged in relation to the shares which were the subject of the second prospectus, which was outside the seven day period permitted under the Act.[80]

1. On 12 March 2021, Matador issued a further cleansing prospectus to enable the on-sale of shares which had been issued without disclosure.[81]

Statutory regime Financial Reports and appointment of auditor

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 pt 2M.4 of the Act.
2. The directors of a public company are obliged within one month of registration of the company to appoint an auditor, unless the members at a general meeting have appointed an auditor (s 327A(1)).
3. Where there is a vacancy in the office of auditor, pursuant to s 327B(1)(b) of the Act, a public company must appoint an auditor to fill the vacancy at each annual general meeting subsequent to the company's first annual general meeting. Section 327B(3) of the Act requires a director of a company to take all reasonable steps to comply with, or to secure compliance with, s 327B(1).
4. Section 327C of the Act deals with circumstances where an auditor is appointed to fill a casual vacancy other than at an annual general meeting. If a vacancy occurs in the office of auditor of a public company, which is not caused by the removal of the auditor from office and there is no surviving or continuing auditor of the company, the directors must, within one month of the vacancy occurring, appoint an auditor to fill the vacancy unless the company at a general meeting has appointed an auditor to fill the vacancy (s 327C(1)). An auditor appointed to fill a casual vacancy under s 327C(1) of the Act holds office until the company's next general meeting (s 327C(2)).
5. Section 328A of the Act governs an auditor's consent to appointment. Under s 328A(1) of the Act, a company or its directors must not appoint an individual, firm or company as auditor unless that individual, firm or company has consented by written notice, before the appointment, to act as auditor and has not withdrawn that consent before the appointment is made.
6. Section 328B of the Act sets out the procedure that governs the nomination of an auditor. Pursuant to s 328B(1) of the Act, a company may appoint an individual, firm or company as auditor of the company at its annual general meeting only if a member of the company gives the company written notice of the nomination of the individual, firm or company before the meeting was convened, or not less than 21 days before the meeting (unless an auditor is removed from office at the annual general meeting). If a company purports to appoint an auditor in contravention of s 328B(1), the appointment is of no effect (s 328B(2)(a)) and the company and each officer of the company who is in default are guilty of an offence (s 328B(2)(b)).

Application for quotation of securities offered under prospectuses

1. Chapter 6D of the Act governs fundraising by companies. Division 5 concerns the procedure by which securities may be offered and includes provisions regarding the disclosures which must be made to investors and the procedure by which securities can be offered.
2. Relevantly, the Act requires that:

(a) certain offers must be made in, or be accompanied by, a disclosure document;[82]

(b) any application money received by the company must be held on trust until the securities are issued or transferred or the money is returned to the applicants.[83]

1. Section 723 governs how securities can be issued or transferred under a disclosure document. Specifically, s 723(3) provides:

(3) If a disclosure document for an offer of securities states or implies that the securities are to be quoted on a financial market (whether in Australia or elsewhere) and:

(a) an application for the admission of the securities to quotation is not made within 7 days after the date of the disclosure document; or

(b) the securities are not admitted to quotation within 3 months after the date of the disclosure document;

(c) an issue or transfer of securities in response to an application made under the disclosure document is void; and

(d) the person offering the securities must return the money received by the person from the applicants as soon as practicable.

1. If the securities to be issued under the disclosure document are not admitted to quotation within three months, under s 724 of the Act, the company can do one of the following:

(a) repay the money to the applicants;[84]

(b) give the applicant a supplementary or replacement disclosure document and one month to withdraw their application and be repaid;[85]

(c) issue or transfer the securities to the applicants and give them a supplementary or replacement disclosure document and one month to withdraw their application and be repaid.[86]

1. If securities have been issued under the disclosure document, the company cannot avail itself of the option of lodging a replacement prospectus.[87]
2. In Re Solco Ltd, McKerracher J summarised the legislative scheme in ch 6D of the Act.[88] Save for the amendments pursuant to the ASIC Corporations (Minimum Subscriptions and Quotation Conditions) Instrument 2016/70 (Cth), which are not relevant in the present case, I accept that this is an accurate summary of the applicable legislative scheme.
3. The statutory purpose of s 723 of the Act is that investors, who expect the issued securities to be admitted to quotation on a financial market, should receive such securities within the prescribed time frame so that they are able to take advantage of the quotation.[89]
4. Finally, as was noted by McKerracher J, where an application is brought after the expiration of the time period in s 723(3) of the Act, the other two sections that are relevant to the application are the remedial provisions s 254E and s 1322 of the Act.[90]
5. Section 254E of the Act provides:

(1) On application by a company, a shareholder, a creditor or any other person whose interests have been or may be affected, the Court may make an order validating, or confirming the terms of, a purported issue of shares if:

(a) the issue is or may be invalid for any reason; or

(b) the terms of the issue are inconsistent with or not authorised by:

(i) this Act; or

(ii) another law of a State or Territory; or

(iii) the company's constitution (if any).

(2) On lodgment of a copy of the order with ASIC, the order has effect from the time of the purported issue.

1. Part 6D.2 of the Act imposes disclosure obligations on corporations in relation to rights issues and the issue and sale of quoted securities.
2. Section 708A of the Act governs the issue of quoted securities, including shares. In certain circumstances, the disclosure obligations can be satisfied by lodging a cleansing notice (s 708A(5)) or a prospectus. If disclosure has not been made by the issuer and the shares are on‑sold within 12 months, the party to whom the shares are issued may be obliged to make disclosure.[91]

Power under s 1322 of the Corporations Act to grant relief sought

1. Section 1322 of the Act relevantly provides:

(4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

(a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation;

(b) an order directing the rectification of any register kept by ASIC under this Act;

(c) an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);

(d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

...

(6) The Court must not make an order under this section unless it is satisfied:

(a) in the case of an order referred to in paragraph (4)(a):

(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;

(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or

(iii) that it is just and equitable that the order be made; and

(b) in the case of an order referred to in paragraph (4)(c) - that the person subject to the civil liability concerned acted honestly; and

(c) in every case - that no substantial injustice has been or is likely to be caused to any person.

1. On an application under s 1322 of the Act, it is necessary that the prescriptive requirements of the wording in s 1322(4) and the preconditions in s 1322(6) of the Act be satisfied.[92]
2. The powers conferred under s 1322 of the Act reflect the broad legislative policy that the law should not unnecessarily invalidate transactions or cause inconvenience because of non‑compliance with the requirements of the Act where such non‑compliance is the result of honest error or inadvertence and where the court can avoid such effects without causing prejudice to third parties or the public interest in ensuring compliance with the law. This broad policy does not authorise the court to lightly set aside the requirements of the Act where such requirements have not been observed. It is necessary for the court to consider the circumstances of each individual case to ensure that it is appropriate to grant the indulgence sought and that, in making such orders, it does not undermine requirements of the Act.[93]
3. In considering an application under s 1322(4) of the Act, the essential principles are:[94]

(a) the prescriptive requirements of s 1322(4) and the pre‑conditions in s 1322(6) need to be satisfied;[95]

(b) the court retains a discretion as to whether it makes the orders sought;

(c) limitations to the broad powers in s 1322 will not be readily implied.[96] Section 1322 is remedial in character and should be applied broadly;

(d) the court can make orders under s 1322(4)(a) on conditions and also make such consequential and ancillary orders as it thinks fit; and

(e) an order can be made under s 1322(4)(a) notwithstanding that the contravention or failure concerned resulted in the commission of an offence.[97]

1. In considering an application under s 1322(4)(d), as was noted by Barker J in Blaze Asset Pty Ltd v Target Energy Ltd:[98]

[T]he exercise of the power ... involves in effect a two stage process. First, the Court needs to determine whether, having regard to the circumstances of the case and the general objects of the [Act] it is appropriate to make an order extending a relevant period, or abridging a relevant period. Secondly, if those circumstances are made out, then the Court must address the question whether any substantial prejudice has been or is likely to be caused to any person by the making of such an order.

1. That is, the power under s 1322(4)(d) must be exercised having regard to the general objects and purposes of the Act. Any order made by the court must not undermine the reasons for the requirements of the Act and must be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with the Act.[99]

Disposition Application by an 'interested party'

1. I accept that Matador is an interested party who may seek relief, as required by s 1322(4).[100]

1. Given the urgency with which this matter was brought on, neither the ASX or ASIC were in a position to indicate whether it supported or opposed the application.[101] Neither appeared at the hearing of the matter. At the hearing, counsel for Matador justified the urgency of the matter. The urgency arose because of the impending deadline for Matador to lodge its half‑yearly accounts on 16 March 2021. Prior to this, it was necessary for the accounts to be finalised by Matador and reviewed by its auditors. On this basis, I was satisfied that it was appropriate to proceed with the hearing of the application in the absence of the ASX and ASIC's position being known to the court.

1. On the evidence before me, I make the following findings of fact:

(a) following the resignation of Walker Wayland as Matador's auditor with effect from 3 February 2020, the directors of Matador complied with their obligations under s 327C(1) of the Act by appointing Bentleys as auditor with effect from 3 February 2020. However, by reason of s 327C(2) of the Act, the appointment of Bentleys to fill the casual vacancy only extended until the company's next annual general meeting;

(b) the effect of s 327C(2) of the Act is that Bentleys ceased to hold office as auditor of Matador following its annual general meeting on 28 November 2020;

(c) from this date, the directors of Matador were required, pursuant to s 327C(3) of the Act, to take all reasonable steps to comply with, or to secure compliance with s 327C(1) of the Act to appoint an auditor to fill the casual vacancy. This did not occur;

(d) Bentleys provided a written engagement letter to Matador on 8 January 2020. I accept the submission of counsel for the plaintiff that these terms comprised Bentleys' consent for the purposes of s 328A(1) of the Act to fill the casual vacancy until the 2020 annual general meeting. These terms were not a consent for the appointment of Bentleys as auditor of Matador from the 2020 annual general meeting onwards, as required by s 328A(1) of the Act;

(e) Bentleys did not provide its express written consent to its appointment as auditor of Matador prior to the 2020 annual general meeting for their audit services for the financial years ending 30 June 2021 and the review of the half-yearly accounts for 31 December 2020 as their letter of engagement was dated after the annual general meeting;

(f) at no stage did a shareholder nominate Bentleys as auditor of Matador nor was a resolution passed at the annual general meeting in 2020 appointing Bentleys as auditor of Matador.

1. I considered the legislative history and objects of ch 2M.4 in my decision on Re Bellevue Gold Ltd at [48] ‑ [54]. Those reasons for decision reflect my views on this matter. It is not necessary for me to repeat what I said there.

1. Matador sought a declaration under s 1322(4)(a) of the Act that the appointment of Bentleys as its auditor from 18 November 2020 to date was not invalid by reason of its failure to comply with s 327B(1)(b), s 327C(2) and s 328B of the Act.
2. I accept that the prescriptive requirements of s 1322(4)(a) of the Act are satisfied in that:

(a) the proposed validation order is framed in a declaratory form;

(b) the act, matter or thing is the appointment of Bentleys pursuant to ch 2M.4 of the Act;

(c) the contravention is the failure by Matador and its directors to comply with s 327B(1)(b), s 327C(2)(c) and s 328B of the Act.

1. Matador submitted that each of the pre‑conditions in s 1322(6)(a) of the Act was satisfied.
2. For the reasons I expressed in Re Bellevue Gold Ltd at [59], my preliminary view is that the failure to appoint Bentleys is not an act of a 'procedural nature' within the meaning of that term in s 1322(6)(a)(i) of the Act.[102] However, for the reasons which follow, it is not necessary for me to reach a concluded view on this matter.
3. Turning to the pre-condition in s 1322(6)(a)(ii) of the Act, in Re ICandy Interactive Ltd, Banks-Smith J undertook a comprehensive review of the relevant principles in respect of whether there is no failure of the persons concerned or the company to act honestly.[103] Relevantly, Banks‑Smith J considered that:

(a) when determining whether someone has acted honestly for the purposes of s 1322, the courts look to absence of evidence of dishonesty and prompt action to remedy the error;[104]

(b) the concept of acting honestly can embrace:[105]

(i) inadvertence or failure to turn one's mind to an issue;

(ii) active but incorrect consideration of a legal issue;

(iv) failure to understand or appreciate the significance of non-compliance; and

(c) when testing for honesty, the authorities reveal that the courts look at the company itself, the directors, the company secretary and others as may be concerned.[106]

1. In this case, on the basis of the evidence of Mr McKenzie, which I accept, there was no failure of any relevant person to act honestly. The failure to appoint Bentleys as auditor arose through inadvertence: specifically, Mr McKenzie overlooking the requirement at the time of preparing the notice of annual general meeting in 2020 to procure a nomination of Bentleys from a shareholder or to include a resolution confirming Bentleys' appointment as auditor. For these reasons, I accept the precondition in s 1322(6)(a)(ii) of the Act is satisfied.
2. I am also satisfied that it would be just and equitable to make the orders sought. Section 1322(6)(a)(iii) gives the court a wide discretion in exercising its powers under s 1322 of the Act.[107]
3. In my view, the making of the order 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 companies' accounts and that audited accounts are lodged within the timeframes specified by the Act.
4. It is relevant that all relevant parties (Bentleys, Matador, and its shareholders) proceeded on the basis that Bentleys had been appointed auditor. No issue or complaint has been raised in relation to the 2020 accounts or the conduct of the audit (or review) by Bentleys.
5. In my view, the granting of the relief sought will remove any doubt as to the compliance by Matador with its financial reporting obligations and the potential impact on the operations of the company.

1. I have considered the classes of persons who may be impacted by the making of these orders, being Matador, the shareholders of the plaintiff and the auditor of Matador, Bentleys.
2. I find there is no basis for inferring that substantial injustice has been or is likely to be caused to any person by the making of the orders.
3. I accept that if the orders sought are not made, there may be substantial injustice to each of Matador, Bentleys and Matador's shareholders. In addition to the specific matters raised above at [77] ‑ [81], in the event that Bentleys' appointment is not validated and a complaint was raised about the work they had done, it is possible that a legal issue could be raised as to whether an auditor who is not appointed at law is liable for the work performed by them and whether the work is covered by their professional indemnity insurer.

No other discretionary reason to withhold relief

1. I accept and find that there is no evidence of any substantial misconduct, serious wrongdoing or flagrant disregard of the Act so as to warrant refusal of the relief sought.
2. There is nothing in the evidence before me that suggests that any minority shareholder interest might be oppressed or that any other interest might be affected. I am satisfied that all shareholders as well as the ASX and ASIC have been notified of the plaintiff's contraventions of the Act and given notice of this hearing. No shareholder or either regulator has sought to intervene in the hearing or given notice that they want to be heard on the application.
3. In exercising the discretion to grant relief under s 1322(4)(a) of the Act, a relevant factor is the promptness with which the plaintiff has sought to remedy the irregularity once it was identified. In this case, the plaintiff first became aware of the issue on 2 March 2021. The plaintiff immediately sought legal advice and commenced these proceedings on 12 March 2021. I accept and find that the plaintiff has acted diligently in seeking to remedy the matters that are the subject of this application.

1. Matador also sought orders relieving the company and its current and former directors and officers from any civil liability arising out of the contraventions of s 327B(3) and s 328B(2)(b) of the Act by reason of the failure to procure that a member nominate Bentleys as auditor of the company or to have the appointment of Bentleys approved at the 2020 annual general meeting.
2. Section 1322(4)(c) of the Act permits the court to make an order relieving a person from civil liability for a broad range of contraventions or failures, subject to the conditions in s 1322(6) of the Act that the person concerned acted honestly and that no substantial injustice has been or is likely to be caused to any person.[108]
3. A pre‑condition to making an order under s 1322(4)(c) of the Act is that the person to be relieved from civil liability acted honestly.[109]
4. Counsel for Matador submitted that the relevant parties acted honestly throughout the relevant period as they believed the requirements of the Act had been complied with. I accept that the contravention occurred by way of inadvertence or oversight for the reasons set out at [77] and that there is no evidence that Matador, or its current or former directors or officers, acted dishonestly. I also accept that the relief sought by the plaintiff is appropriately confined to the specific omissions that caused the contravention.
5. For that reason, and having regard to the matters referred to at [85] to [87] above, I consider it is appropriate that the plaintiff and its current and former officers be relieved of any civil liability arising out of their contraventions of the Act. However, in my view, any relief granted under s 1322(4)(c) of the Act should be limited to those contraventions which arise from the specific omissions identified by the plaintiff.

Validation of issues of securities on conversion of options

1. In addition to the orders sought by Matador in respect of the appointment of Bentleys, Matador also sought orders in respect of eight issues of securities issued by Matador following the conversion of options between 14 October 2019 and 15 February 2021.

1. Matador sought a declaration under s 1322(4)(a) of the Act that any offer for sale or sale of any of the fully paid shares in Matador in the relevant period is not invalid by reason of any contravention of s 707(3) or s 727(1) of the Act.
2. I note that:

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

(b) the act, matter or thing is the offer for sale or sale of securities for the purposes of s 707(3) and s 727(1) of the Act;

(c) the contraventions are the offering of securities for sale or sales without proper disclosure in contravention of s 706 and s 707(3) of the Act.

1. Counsel for Matador submitted that the pre‑conditions in s 1322(6)(a)(ii) and (iii) of the Act were satisfied.
2. The evidence of Mr McKenzie is that while he issued cleansing notices or cleansing prospectuses for share issues or placements undertaken by Matador, as a result of his mistaken understanding of what was required, he overlooked the need to issue a cleansing notice or prospectus in relation to the conversion of options to shares.
3. Matador submitted, which I accept, that this was a genuine error and that there was no failure of the persons concerned, Matador, or its directors and officers to act honestly.
4. I also accept that this is not a case where there has been a failure of the plaintiff's directors to take an active interest in the company's compliance with the Act or to properly define roles of company officers. I accept that the plaintiff's directors delegated responsibility for the issues of shares following conversions of options, and the offers for sale or any sales for securities, to the company secretary. For these reasons, I am satisfied that the precondition in s 1322(6)(a)(ii) is satisfied.

1. I have considered the classes of persons who may be impacted by the making of these orders.
2. First, the people who were issued the impugned shares. The prejudice to them is that the sale of the impugned shares may be void or voidable.[110] Matador's failure to comply with the relevant provisions has caused a trading halt and a suspension of its shares. If orders are not made and the suspension is not lifted, Matador's shareholders will not have the benefit of a market for their securities.
3. Second, any people who purchased the impugned shares from on-sellers may have on-sold the shares themselves by trading on the open market of the ASX since they were issued. Any further sales of these shares will have occurred without disclosure under the Act, pt 6D.2, and these transactions may also be void or voidable.
4. I find that there is no basis for inferring that substantial injustice has been or is likely to be caused to any person by the making of the proposed orders.
5. I accept that if the orders sought are not made, there may be substantial injustice to the plaintiff as the offers of and sales of shares may be void or voidable. This could give rise to commercial uncertainty and expense for the company as it must remain involved in problems caused by void or voidable offers and sales of its shares. I also accept that there may be substantial injustice to the other ordinary shareholders of Matador, as they may not be able to trade their shares on an open market if the ASX does not lift the current suspension from trading.
6. It is usual in cases such as these to provide an opportunity for shareholders or other parties to raise a complaint about the proposed orders. The usual timeframe is that there be liberty to apply within 28 days from the date of the order. I accept that this is an appropriate timeframe in this case.
7. For the following reasons, I was and am satisfied that in the circumstances of this case, relief should be granted in the terms sought by the plaintiff in respect of the issues of securities. First, the evidence before me is that there has been sales of the shares that have been issued and that it cannot be discounted that there have been subsequent resales of these shares. In these circumstances, I consider that it is appropriate to make the orders sought to remove any question as to title in the shares of the plaintiff. Second, the orders sought by Matador did not concern a future act but a past act. Third, I am satisfied that the conduct of the plaintiff was inadvertent and not in blatant disregard of its obligations under the Act. I do not consider that public policy will be undermined by granting the plaintiff the relief sought.

Application for an extension of time for the application for admission to quotation of securities issued under prospectuses and validation of issue of shares

1. Unless the court grants Matador an extension of time, the shares issued by Matador under the prospectus dated 8 July 2020 will be void. In addition, given that each of the prospectuses dated 15 June 2020 and 8 July 2020 were issued as cleansing prospectuses, unless the validity of these prospectuses is confirmed, the validity of the shares that were issued in reliance of these prospectuses may be called into question.
2. The evidence before the court is that Matador did not lodge an application for admission to quotation of the securities to be issued under the prospectuses within seven days after the date of the prospectuses, as required by s 723(3)(a) of the Act. It is not in doubt that the court can grant an extension of the time limit for applying for admission to quotation of the shares, even though the relevant time limits expired on 22 June 2020 and 15 July 2020 respectively, under s 723(3)(a) and s 1322(4)(d) of the Act.
3. For the following reasons, I was and am satisfied in the circumstances of this case that it is appropriate to grant the extension of time sought.
4. First, Matador has provided an explanation as to the reason for the delay. In relation to the prospectus dated 15 June 2020, Mr McKenzie's evidence was that he was particularly busy at the time, that the omission was inadvertent, and that another company he was involved with was providing a distraction from his duties at Matador.[111] Mr McKenzie's evidence is that the oversight was caused by late nights and a heavy workload.[112] On this basis, I accept that the non-compliance with the obligations of the Act was unintentional, honest and inadvertent.
5. Second, granting the extension of time is consistent with the purpose and policy of the legislation, including the facilitation of the conduct of commerce generally. The purpose of these provisions of the Act is to ensure that investors who apply for shares tradeable on the ASX receive what they have bargained for. Granting the relief sought will reflect the intention of the plaintiff that these shares be quoted on the ASX.
6. Third, after being made aware of the issue, Matador acted promptly in bringing this application and there has been no delay in bringing this matter on for an urgent hearing.
7. Fourth, in the absence of an extension of time, I accept that the shares issued to Mr McKenzie will be void and there will be a question about the validity of the shares the subject of placements by the company. I accept that it is in the interests of the company and its shareholders for any doubt to be removed about the validity of these shares.
8. Fifth, I was and am satisfied that the interests of any other party affected by these orders are adequately protected by the orders proposed by Matador. Specifically, notice is required to be given to all persons potentially affected by the orders and they have the ability to return to the court to revoke or vary the orders.

1. Counsel for Matador submitted that each of the pre‑conditions in s 1322(6)(a) of the Act were satisfied.
2. In respect of the pre‑condition in s 1322(6)(a)(i), counsel for Matador submitted, which I accept, that the act, matter or thing, namely an application for admission to quotation being made to the ASX, is of a procedural nature.
3. I also accept that the pre-condition in s 1322(6)(a)(ii) was satisfied as there was no failure of Matador or its directors or officers to act honestly. I accept the evidence of Mr McKenzie that his failure to apply for the admission of securities was inadvertent and not dishonest.
4. I also accept Matador's submission that it would be just and equitable for the orders sought by it to be made. Although the number of shares issued under the prospectus is small, these shares will be invalid if the orders sought are not made. As noted above, the impact that any invalidity may have on the placements that were undertaken by Matador which relied on the cleansing prospectuses is of greater concern to the company. In all of the circumstances, in my view, it is appropriate that orders be made to remove any doubt about the validity of the shares issued under the prospectus or which relied on the prospectus.

1. I have considered the classes of persons who may be impacted by the making of these orders, being Matador and its shareholders.
2. I find there is no basis for inferring that substantial injustice has been or is likely to be caused to any person by the making of the orders.

1. In respect of two tranches of shares issued under cleansing prospectuses, counsel for Matador drew to my attention to the breaches by Matador of the statutory trust required by s 722(1) of the Act
2. While I accept that the payment of the monies by Mr McKenzie directly to Matador and not into a separate trust account was not in accordance with the requirements of the Act, for the following reasons, I do not consider this warrants refusal of the orders sought.
3. First, the application by Matador is to validate the prospectuses and shares issued and not to absolve any person from liability under the Act for a breach of s 722 of the Act. The orders sought by the company are for the benefit of its shareholders to enable the recommencement of trading and not for the benefit of Mr McKenzie or any of the company's directors or officers.
4. Second, the evidence before me does not indicate that Mr McKenzie's actions in making the payment was dishonest or to avoid the obligations of the Act. Counsel for the plaintiff submitted, which I accept, that due to the small amount of money involved, Mr McKenzie's actions were to benefit the company and not to harm it; the opening and operation of a separate trust account would have been more expensive than the amount paid for the shares.

1. In relation to the 100 shares issued on 2 October 2020 under the prospectus dated 8 July 2020, pursuant to s 254E(1) of the Act, the court can validate and confirm the issue of these shares. Pursuant to s 1322(4)(a) of the Act, the court can also make orders confirming that the shares that have been issued by Matador are not invalidated by reason of a contravention of the Act.
2. Turning first to the application under s 254E of the Act. The court can make an order under that section if a purported issue of shares may be invalid. I am satisfied that the issue of the shares under the July Prospectus would, without orders being made by the court, be invalid by reason of s 723(3)(c) of the Act.
3. In this case, for the following reasons, I am satisfied that it is appropriate to make orders validating the issue of these shares. First, the number of shares is small. Second, I accept that the failure to apply for the quotation of these shares was an oversight and there is no evidence that Mr McKenzie or anyone else acted dishonestly.
4. In respect of the application under s 1322(4)(a) of the Act, I am satisfied that it is appropriate to make the order sought by the plaintiff as:

(a) the proposed order is framed in terms of a declaration;

(b) the act, matter or thing is the application for admission for quotation for the purposes of s 723(3)(a) of the Act;

(c) Matador has contravened the requirements of the Act, by not applying for quotation of the shares and failing to return monies to Mr McKenzie as required by s 723(3)(c) and s 723(3)(d) of the Act.

1. I am satisfied that the pre-conditions of s 1322(6)(a)(i) and s 1322(6)(a)(ii) of the Act are satisfied in that the act (the application for admission for quotation) is essentially of a procedural nature and there is no failure of the persons concerned or Matador to act honestly.
2. For the reasons set out above in respect of the application for an extension of time, I consider that the pre-condition in s 1322(6)(a)(iii) is also satisfied in that it is just and equitable for orders to be made validating or confirming the issue of shares. For the same reasons, I also consider that no substantial injustice has been or is likely to be caused to any person by validating the shares that were issued under the prospectus and consider that substantial injustice may occur if these orders are not made.
3. In respect of the exercise of discretion under each of s 254E and s 1322(4)(a) of the Act, for the reasons set out above at [125] ‑ [130], I consider that the court should make the orders sought. There is no evidence of any substantial misconduct or flagrant disregard of the Act which would warrant refusal of the relief sought.

1. For these reasons, I was satisfied that, in the circumstances of this case, relief should be granted in terms of the relief sought by the plaintiff. Accordingly, at the conclusion of the hearing, I made orders in the form annexed to these reasons as 'Annexure A'.

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

[1] See also Re Bellevue Gold Ltd [2021] WASC 80; Re New Century Resources Ltd [2021] WASC 86.

[2] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [5].

[3] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [7].

[4] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [8].

[5] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [9], 'SAM-2'.

[6] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [21], 'SAM-5'.

[7] Affidavit of Stuart Andrew McKenzie filed 12 March 2021, 'SAM-9'.

[8] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [22], 'SAM-6'.

[9] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [23], 'SAM-7'.

[10] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [24], 'SAM-8'.

[11] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [26], 'SAM-8'.

[12] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [27], 'SAM-11'.

[13] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [29].

[14] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [30].

[15] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [29] - [30].

[16] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [31], 'SAM-12'.

[17] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [32], 'SAM-12'.

[18] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [34], 'SAM-13'.

[19] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [38], 'SAM-16'.

[20] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [38], 'SAM-16'.

[21] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [25], 'SAM-10'.

[22] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [39].

[23] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [39].

[24] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [40].

[25] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [42].

[26] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [43] - [46].

[27] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [47], 'SAM-17'.

[28] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [167], 'SAM-44', 'SAM-45'; Affidavit of David George Filov filed 14 March 2021 [8] - [11], [17] - [19], 'DGF-1', 'DGF-2', 'DGF-3', 'DGF-5', 'DGF-7'.

[29] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [50] - [51].

[30] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [52] - [53], 'SAM-19'.

[31] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [56] - [58], 'SAM-20'.

[32] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [59].

[33] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [62].

[34] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [60] - [61].

[35] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [64].

[36] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [65].

[37] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [73] - [74], [76], 'SAM-25'.

[38] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [75].

[39] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [77], 'SAM-19'.

[40] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [81], [84].

[41] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [85].

[42] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [82], 'SAM-26'.

[43] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [82].

[44] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [89].

[45] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [92].

[46] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [90], 'SAM-27'.

[47] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [96], [100].

[48] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [101].

[49] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [98] - [99], 'SAM-29'.

[50] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [105], [107], 'SAM-19'.

[51] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [108].

[52] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [106], 'SAM-30'.

[53] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [118], [121].

[54] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [122].

[55] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [119], 'SAM-32'.

[56] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [111], [113].

[57] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [114].

[58] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [78], [86], [93], [102], [109], [115].

[59] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [78] - [79], [86] - [87], [93] - [94], [102] ‑ [103], [109] - [110], [115] - [116].

[60] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [123] - [124].

[61] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [126].

[62] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [129], 'SAM-34'.

[63] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [132].

[64] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [129], [131], 'SAM-35'.

[65] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [133].

[66] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [134].

[67] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [136].

[68] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [137].

[69] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [138].

[70] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [139] - [140], 'SAM-37'.

[71] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [141] - [142].

[72] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [144] - [146].

[73] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [146].

[74] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [148].

[75] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [150], 'SAM-40'.

[76] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [150], [152], 'SAM-41'.

[77] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [154].

[78] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [156].

[79] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [157].

[80] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [158] - [159], 'SAM-43'.

[81] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [174] - [175], 'SAM-47'.

[82] Corporations Act 2001 (Cth), s 721.

[83] Corporations Act 2001 (Cth), s 722.

[84] Corporations Act 2001 (Cth), s 724(2)(a).

[85] Corporations Act 2001 (Cth), ss 724(2)(b) and 724(3).

[86] Corporations Act 2001 (Cth), ss 724(2)(c) and 724(3).

[87] Re Helios Energy Ltd [2017] FCA 840; (2017) 122 ACSR 174 [12], [22], [24(d)].

[88] Re Solco Ltd [2015] FCA 635; (2015) 106 ACSR 591 [15] - [19]. See also Re G8 Communications Ltd [2016] FCA 297; (2016) 112 ACSR 22 [15] ‑ [16]; Re Helios Energy Ltd [18]; Re Austsino Resources Group Ltd [2018] FCA 883 [12]; Re Jaxsta Ltd [2018] WASC 390 [35].

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

[92] Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 [43] (French CJ), [53] (Hayne, Crennan and Kiefel JJ), [64] (Gageler J).

[93] Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418 [29].

[95] Weinstock v Beck [43], [53], [64].

[96] Weinstock v Beck [43], [55] - [56], [64].

[97] Corporations Act 2001 (WA), s 1322(5).

[98] Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488 [31]. See also Re Jaxsta Ltd [41]-[42].

[99] Re Wave Capital Ltd [29]; Re Jaxsta Ltd [43].

[100] Re Caeneus Minerals Ltd [2018] FCA 560 [38]; Re Classic Minerals Ltd [2018] FCA 2039 [34].

[101] Affidavit of David George Filov filed 14 March 2021 [13], [21] - [22], 'DGF-9'.

[102] See Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185 [103]; Gofur v Bangladesh Islamic Centre of NSW (BIC) [2020] NSWSC 652 [39] - [40].

[103] Re ICandy Interactive Ltd [2018] FCA 533; (2018) 125 ACSR 369 [54] - [104].

[104] Re ICandy Interactive Ltd [54], [106] - [107].

[105] Re ICandy Interactive Ltd [55].

[106] Re ICandy Interactive Ltd [60] - [104].

[107] Re Bellevue Gold Ltd [64] - [65] and the authorities cited therein.

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

[109] Corporations Act, s 1322(6)(b).

[110] Re Poseidon Nickel Ltd [2018] FCA 1063; (2018) 129 ACSR 57 [63].

[111] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [145].

[112] Affidavit of Stuart Andrew McKenzie filed 12 March 2021 [154] - [155].