Wellington Capital Limited, in the matter of Premium Income Fund v Premium Income Fund Action Group

Federal Court of Australia|2011-07-25|Before: Mr P, Dowsett J

Counsel for the Plaintiff: Mr P Morrison QC and Mr P O'Higgins

Solicitor for the Plaintiff: McCullough Robertson

Counsel for the Defendants: Mr P Dunning SC and Mr L Jurth

Wellington Capital Limited, in the matter of Premium Income Fund v Premium Income Fund Action Group [2011] FCA 781 CORRIGENDUM 1 In paragraph 64 of the Reasons for Judgment, second last line, the time "12.15 pm" should read "11.15 am". I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 25 July 2011 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 140 of 2011

IN THE MATTER OF THE PREMIUM INCOME FUND (ARSN 090 687 577) BETWEEN: WELLINGTON CAPITAL LIMITED ACN 114 248 458 AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND ARSN 090 687 577

AND: PREMIUM INCOME FUND ACTION GROUP INCORPORATED (NSW INCORPORATED ASSOCIATION NO. 9894759)

JUDGE: DOWSETT J DATE OF ORDER: 25 JULY 2011 WHERE MADE: BRISBANE

THE COURT DECLARES THAT: pursuant to section 1322 of the Corporations Act 2001 (Cth) the meeting of unit holders of the Premium Income Fund first convened on 16 June 2011, adjourned to 23 June 2011 and then to 14 July 2011 was invalidly convened; and such irregularity has caused, or may cause, substantial injustice which cannot be remedied by an order of the Court; and the meeting is therefore invalid. THE COURT FURTHER ORDERS THAT: the application otherwise be adjourned to a date to be fixed; and costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 140 of 2011

IN THE MATTER OF THE PREMIUM INCOME FUND (ARSN 090 687 577) BETWEEN: WELLINGTON CAPITAL LIMITED ACN 114 248 458 AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND ARSN 090 687 577

AND: PREMIUM INCOME FUND ACTION GROUP INCORPORATED (NSW INCORPORATED ASSOCIATION NO. 9894759)

JUDGE: DOWSETT J DATE: 25 JULY 2011 PLACE: BRISBANE

THE FUND 1 The Premium Income Fund (the "Fund") is a registered managed investment scheme, regulated by Ch 5C of the Corporations Act 2001 (Cth) (the "Corporations Act"). Units in the Fund are traded on the National Stock Exchange (the "Stock Exchange"). The plaintiff is the responsible entity of the Fund. The first defendant is an incorporated association of which the third defendant is president and the second defendant, vice-president. They both hold units in the Fund.

THE MEETING 2 On 16 May 2011, Castlereagh Capital Limited ("Castlereagh") wrote to members of the Fund as follows: Castlereagh Capital Limited (Castlereagh) is delighted to have been approached by [the first defendant] to act as replacement Responsible Entity, with managerial responsibility, of the Fund if appointed by its Members at a Meeting to be held on 16 June 2011 at 11.00 am at SMC Conference and Function Centre, 66 Goulburn Street, Sydney. We have been working with [the first defendant] for a number of months to formulate a proposal to you which is outlined in the enclosed material. 3 A description of the alleged attributes of Castlereagh follows, referring to its experience "in managing both distressed and non-distressed property and mortgage funds", with biographical details of directors and senior executives. Under the heading "Aims for the Fund" it is said that: Castlereagh aims to: • Implement a strategy which addresses the 75% discount between the units' trading price and their value as reported in Financial Statements. • We intend to implement our strategy by: • Providing improved disclosure of information concerning the Fund's assets so the market value reflects the underlying value; • Assist the Class Action proceedings currently under way, which if successful could return up to 50 cents per unit in value to members; and • Align the members' interests with those of the Responsible Entity, by the removal of fee structures and constitutional provisions which restrict member rights. • Provide a detailed review on the Fund within 60 business days (of being appointed as the replacement Responsible Entity) outlining workout strategies and timelines for asset turnarounds and give you a realistic time in which to restore market confidence which should improve the value of your investment. 4 Castlereagh requested that unit holders provide their email addresses so that email updates could be forwarded to them prior to a meeting of members of the Fund scheduled for 16 June 2011. A notice of meeting dated 16 May 2011 was enclosed. Castlereagh strongly recommended that members vote for the proposed motions. Proxy forms were enclosed. Proxies were to be in favour of the third defendant, the second defendant or any other person nominated by the unit holder. Unit holders were asked to forward proxies to Computershare Investment Services Pty Limited ("Computershare"), which company had been retained by the defendants and/or Castlereagh. 5 The notice of meeting stated that: This Notice is given by Members of the Fund who together hold interests carrying more than 5% of the votes that may be cast at midnight before this Meeting, referred to as Requisitioning Members. The Requisitioning Members have appointed [the third defendant] and [the second defendant] as their attorneys to convene the Meeting and execute documentation enabling it to be convened and subsequently held. The Requisitioning Members reserve the right to postpone the Meeting to a later time or date. If the Requisitioning Members make such a determination, they will notify all Members by placing an announcement on the following website: www.cascap.com.au The Requisitioning Members will endeavour to notify Members by post of any postponement before the original meeting date and time. However, any postponement of the Meeting will not be invalidated by a failure to do so. 6 At the meeting, the first business was to be the election of a chairperson by show of hands. Of the substantive business, motions 1-4 and 7 were proposed special resolutions to amend the Constitution. Motions 5 and 6 were as follows: Motion 5 - Resolution to remove [the plaintiff] as Responsible Entity of the Premium Income Fund. That, subject to the passage of Resolution 6, [the plaintiff] … be removed as the responsible entity of [the Fund] … . Motion 6 - Resolution to appoint [Castlereagh] as the new Responsible Entity of the Premium Income Fund. That, subject to the passage of Resolution 5, [Castlereagh] … be appointed as the new Responsible Entity of [the Fund] … . 7 The notice was signed by the second and third defendants "as attorneys for the Requisitioning Members". The relevant power of attorney is in evidence. It is in the following form: Authorization to execute requests to call for Premium Income Fund Unit Holder Meeting I/We … (insert name unit holding is in) are a unit holder in the Premium Income Fund … of which Wellington Capital Limited … is the responsible entity. We request that a meeting is convened under section 252D of Corporations Act (the Act) for the unit holders in PIF to consider resolutions approving changes to the constitution of PIF and resolutions approving the replacement of the responsible entity by Castlereagh Capital Limited … pursuant to section 601FM of the Act. We appoint each of [the second defendant] and [the third defendant] jointly and each of them severally as our attorney to execute on our behalf and in our name each of the following in relation to the matters above: (a) any Notice of Meeting of members of PIF (including any Notice of Adjourned Meeting); (b) any request for information or documents relating to PIF; (c) any other document ancillary to or contemplated by the documents listed in (a) or (b) above; and (d) any proxy form for any Meeting and/or Adjourned Meeting. It is noted that the Notice of Meeting will list our name and unit holding as one of the unit holders (whose aggregate holding must exceed 5% of the votes that can be cast at the meeting) calling the meeting. Date: Signed: There was then provision for signatures and for a witness's signature and name. 8 On 27 May 2011 the plaintiff sent its own proxy forms to unit holders for the purposes of the meeting, accompanied by a document described as an "Investor Update". The proxies were to be returned to Armstrong Registries Services Limited ("Armstrong Registries"), which company provided registry services to the plaintiff. Armstrong Registries is an unlisted public company, partly owned by Ms Jennifer Joan Hutson who is the managing director and founder of the plaintiff. Armstrong Registries is to be distinguished from Mr Phillip Armstrong ("Mr Armstrong"), an employee of Castlereagh who has been closely involved in the dealings between Castlereagh and the defendants. The proxy form provided for appointment of Ms Hutson, in her absence, Robert Pitt, or any other person nominated by the unit holder. There was provision for directions as to how the proxy should be exercised with respect to each of the motions. The material contained a substantial amount of information in support of the proposition that: Wellington has been diligent and professional in its management of your Fund. Each decision has been made with the aim of maximizing the return to you, its Unitholders. 9 The material also included comment concerning Castlereagh and an offer by an organization described as "ALF" to acquire units in the fund. 10 From about 20 May 2011 the solicitors for the first defendant and the solicitors for the plaintiff exchanged correspondence concerning the conduct of the meeting and, in particular, the proxies. As I have said, the documents accompanying the notice of meeting effectively directed that proxies be forwarded to Computershare. Section 252Z of the Corporations Act provides that for a proxy to be valid, it must be received by the responsible entity at least 48 hours before the meeting. Thus the proxies had to be provided to the plaintiff. The solicitors for the defendants indicated to Ms Hutson, in a letter dated 20 May 2011, that arrangements had been made with Computershare pursuant to which it would progressively report the proxy situation to both the plaintiff, as responsible entity, and to Castlereagh. Ms Hutson asserts that Computershare did not, in all respects, comply with these instructions.

THE MELBOURNE PROCEEDINGS 11 On 6 June 2011 the first and second defendants commenced proceedings in the Melbourne Registry of this Court, seeking to restrain the plaintiff and others from proceeding with a proposed rights issue. At an interlocutory hearing held on 8 June 2011 Gordon J made orders designed to facilitate a final hearing on 14 June 2011. The parties undertook to adjourn the meeting, scheduled for 16 June 2011, until 11.00 am on Thursday 23 June 2011, in the expectation that the Melbourne proceedings would be determined prior thereto. A script was prepared to be read on 16 June, explaining the circumstances in which it was to be adjourned. By agreement between the parties to the Melbourne proceedings, Mr Mark Hodges (the "Chairman"), a solicitor and son of the second defendant, was to assume the chair and adhere to the script. Two unit holders were to attend the meeting to ensure that there was a quorum to facilitate its adjournment. Steps were taken to discourage other unit holders from attending. In particular, the plaintiff published a notice on its website and to the Stock Exchange. Castlereagh posted a notice on its website and sent emails to unit holders. They were advised that the meeting was to be adjourned until 23 June 2011 and that they need not attend.

16 JUNE 2011 12 On the morning of 14 June 2011 Computershare delivered to the plaintiff the proxies which it held. At the meeting on 16 June, the Chairman was elected as agreed, and the meeting was adjourned.

COMPLAINTS 13 On 25 May 2011 the solicitors for the plaintiff wrote to the solicitors for the defendants concerning allegedly misleading statements made to unit holders and possible deficiencies in the procedure adopted in calling the meeting. On 17 June 2011, the solicitors for the plaintiff wrote to the solicitors for the defendants, complaining that prior to the meeting on 16 June, attempts had been made to vary the script to be used at the meeting. The complaint was as to a matter of professional conduct which is not presently relevant. There was also a reference to the receipt of proxies by Computershare. The plaintiff's solicitors had previously asserted that the interposition of a recipient between unit holders and the plaintiff created the risk of tampering or other irregularity. The arrangements for reports by Computershare to the plaintiff were designed to obviate that risk. The solicitors for the plaintiff now alleged that they were not satisfied that the arrangements had been honoured by Computershare. They also suggested that the defendants had failed to honour an undertaking concerning the nomination of independent candidates for the position of chair. They asserted that Mr Armstrong had announced at the meeting on 16 June 2011 that the Chairman would be chairing the adjourned meeting. The plaintiff's solicitors asserted that there had been no agreement to that effect. They claimed that the defendants had failed to honour an agreement to identify possible independent candidates. They said that the plaintiff was "reconsidering its legal position" in relation to the meeting material and other "defects".

OUTCOME OF THE MELBOURNE PROCEEDINGS 14 On 20 June 2011 Gordon J declared that certain purported modifications of the Constitution of the Fund were contrary to the Corporations Act and restrained the defendants in those proceedings (including the present plaintiff and Ms Hutson) from allotting or issuing any units pursuant to the proposed rights issue. On the same day the plaintiff filed the present application, seeking interlocutory relief and the following final relief: (a) a declaration that the notice of meeting of unit holders of the Premium Income Fund dated 16 May 2011 issued by the first, second and third defendants, is invalid; … (b) an order restraining the defendants by themselves, their servants or agents or howsoever otherwise, from proceeding with the meeting of members of the Premium Income Fund as described in the notice of meeting of the Premium Income Fund dated 16 May 2011 … .

23 JUNE 2011 15 On 21 June 2011 the solicitors for the defendants proposed that the parties consent to orders adjourning the meeting scheduled for 23 June 2011 until these proceedings had been resolved. The plaintiff declined the proposal. On 22 June 2011 the Chairman, in his alleged capacity as chair of the adjourned meeting, wrote to the solicitors for the plaintiff and the defendants. He said that in the event that the meeting commenced, he would act as chairman, claiming to have been elected to that position by the unit holders on 16 June 2011. He said that he would deal with procedural motions prior to the consideration of any substantive motions and asked that the parties exchange proposed procedural motions in advance and notify him of their content. As to the question of a quorum, he said: I am aware that an issue may arise at the meeting (whether the meeting is to be held on 23 June 2011 or a subsequent date) as to whether the quorum requirements set out [in] clause 10.3 and/or 10.4 have been satisfied. I also understand an argument exists that clause 10.3 and clause 10.4 are invalid as being inconsistent with section 252D of the Corporations Act, 2001. Any issue that may arise concerning the validity of clause 10.3 and/or 10.4 may not eventually be an issue between the parties should the quorum requirements of clause 10.3 be satisfied. In the event as the Chairman of the Meeting I am required to make a decision as to whether there is a quorum present, in order for the parties to be afforded fairness, I invite the parties to provide submissions to my office by 5.00 pm today. I ask that submissions be limited to no more than ten pages. Further, my intention is to allow a representative of [the first defendant] and a representative of [the plaintiff] make oral submissions in the presence of the Unit holders concerning any issue as to whether the quorum requirements have been satisfied. I will then consider any issue that may be raised as to whether the quorum requirements have been satisfied. 16 Mr Macafee, the solicitor acting on behalf of the defendants, attended at the appointed meeting place at about 9.15 am on 23 June 2011. He found Ms Hutson and Mr Armstrong in a meeting room. The second defendant and Ms Weeks, a solicitor from McLean Legal, were also present. That firm was then acting for the plaintiff. Ms Hutson was examining a large pile of proxy reports. Mr Macafee said that the Chairman was entitled to take the chair. He also said that he had made it clear in an email of 22 June 2011 that he thought that it was in the best interests of the unit holders that the meeting be adjourned. He said that Ms Hutson had previously thought that adjournment was in the best interests of unit holders but now proposed that it proceed. Ms Hutson said that she wanted certainty, that she was holding in excess of 3,000 proxy forms and that she proposed not to attend the meeting. It emerged that another meeting was being conducted elsewhere in the building. At a later stage I shall describe that meeting in a little more detail. Mr Macafee said that just before 11.00 am he entered the room in which the adjourned meeting of unit holders was to occur. He attended the entire meeting which was chaired by the Chairman. At a later stage I shall also describe events at that meeting. 17 In a release to the Stock Exchange made after the meeting, the plaintiff (apparently quoting Ms Hutson) said: If the meeting today had proceeded as it should have, there would have been a quorum and final resolution of these matters. It is extremely disappointing that unitholders who have chosen to participate do not have a final outcome today. I was ready willing and able to chair today's meeting as is contemplated by the Premium Income Fund Constitution and the Corporations Act. All relevant steps have been taken to ensure that an orderly meeting that properly reflected the will of the unitholders could occur. Immediately prior to the meeting I had discussions with the meeting convenors with a view to co-operatively determining a way forward to validly conduct today's meeting in a way that was in the best interests of unitholders. When negotiations became intractable, the door to the room in which I was present was locked, preventing my exit. I required security assistance to be able to leave. I understand that the meeting, which did not have the required quorum, was purportedly adjourned, but am presently unable to confirm this as [the plaintiff] was excluded from the meeting. 18 As I understand it, Ms Hutson was asserting that the meeting had been without a quorum. She did not expressly mention that she had produced this result by not attending to vote the proxies which she was holding. She implied that her non-attendance was attributable to the dispute about the Chairman's claim to chair the meeting and/or the fact that she was detained against her will. 19 There is other evidence concerning events prior to the meeting, including evidence from Ms Hutson and from Mr Ferrier, another officer of Castlereagh. Mr Armstrong has also given an account of events, as has Ms Weeks. Many of the incidents referred to by Mr Macafee and in the statement to the Stock Exchange are in dispute. It would be very difficult fairly to resolve such disputes, given the relatively superficial cross-examination which has occurred, no doubt as a result of the urgency of these proceedings. It would, I think, be unfair to any of the witnesses to undertake a detailed examination of his or her evidence with a view to accepting or rejecting such evidence. Further, I have concluded that it is not necessary that I do so in order to resolve the matter. 20 I should, however, say something about the content of the affidavit by Nada Sefian, a flight attendant who is attending part-time acting classes. She, in effect, says that she was employed to attend a meeting to be held on 23 June 2011, in the same building as the meeting of unit holders, but on a different floor. Whilst in the building, she received a purported transfer of 1000 units in the Fund from Wallace Solutions Pty Ltd and was invited to keep them or transfer them back to Wallace Solutions. She then attended a meeting which was addressed by Ms Hutson. She said that she needed the votes of those at the meeting in order "to become chair". There were about 200 people in the room. A man told those attending that they were needed in connection with another meeting "downstairs" in order to make that meeting "fair". I infer that the other meeting was the adjourned meeting of unit holders. He asked them to sign proxy forms and attend the other meeting to vote for Ms Hutson as chair. Ms Sefian did not attend the meeting of unit holders. 21 Ms Hutson agreed that she addressed this "shadow" meeting but said that she did so at the request of a unit holder who claimed to have organized it. Fairly clearly, the defendants were inviting the inference that Ms Hutson was party to the convening of this meeting. However there is no direct evidence to that effect. No doubt, time constraints prevented the parties from investigating the matter further. The allegations are of some concern. The unit holders may have to consider them in connection with the future conduct of the affairs of the Fund. However I do not presently accept that Ms Hutson was involved in whatever scheme was in train, save to the extent that she conceded such involvement. 22 The Chairman also had a conversation with Ms Hutson prior to the meeting on 23 June 2011. Ms Hutson said that she would not address the meeting whilst it was in progress but would speak after it had been adjourned. At the meeting the Chairman introduced himself then invited Mr Ferrier to speak. He said that Ms Hutson had indicated that she would speak after the meeting. Mr Ferrier addressed the unit holders. The Chairman then read from a script which he had prepared, indicating that he had decided to adjourn the meeting. The principal factors which he took into account were the current proceedings, the disruption to air travel in the days leading up to the meeting as a result of volcanic ash in the sky over parts of Australia, and the ongoing disagreement between the plaintiff and the first defendant concerning chairmanship of the adjourned meeting. The meeting was adjourned to 14 July 2011.

THE PLAINTIFF'S CASE 23 The plaintiff asserts that: the direction that proxies be sent to Computershare was in contravention of the requirements of s 252Z(2) and 252D(2) of the Corporations Act; notice of meeting was not sent to all members entitled to vote; the second and third defendants, pursuant to the various powers of attorney, acquired substantial holdings in the Fund, notice of which acquisitions ought to have been given pursuant to s 671B of the Corporations Act; the meeting on 23 June 2011 lacked a quorum and was thereby dissolved pursuant to the Constitution of the Fund; and the requisitioning members failed to comply with the requirements of reg 7.11.37 of the Corporations Regulations 2001 (Cth) (the "Corporations Regulations").

THE DEFENDANTS' MOTION 24 The defendants dispute these alleged deficiencies or question their relevance. In addition they assert that: any irregularity concerning the direction of proxies and or the failure to give notice of meeting to some members may, and should be remedied pursuant to s 1322 of the Corporations Act; the appointment of the second and third defendants as attorneys for the purpose of calling the meeting was for one meeting only and for no consideration, and therefore exempted from the operation of s 671B; and as to the question of a quorum on 23 June 2011, the quorum should not be determined by reference to cll 10.2 and 10.3 of the Constitution of the Fund (the "Constitution") and, in any event, those clauses are invalid. 25 The defendants also seek declaratory relief as to the validity of the Chairman's appointment and as to the entitlement of the plaintiff and its associates to vote on resolutions 1 to 4 at any adjourned meeting. 26 Of primary importance are the questions concerning the notice of meeting and the quorum at the meeting on 23 June 2011.

NOTICE OF MEETING 27 Clause 8 of the Constitution of the Fund deals with the register of unit holders. It relevantly provides: 8.1 The Responsible Entity shall keep and maintain an up-to-date Register of the Unit Holders in which shall be entered the following information: 8.1.1 the names and addresses of the Unit Holders; 8.1.2 the number of Units in respect of which each Unit Holder is registered; 8.1.3 the complete terms of any special rights restrictions or conditions affecting or attaching to Units which are classified; 8.1.4 the date of acquisition and disposal of Units by a Unit Holder; 8.1.5 the transfer and/or transmission of Units; 8.1.6 the date that a Unit Holder is removed from the Register. A Unit Holder will only be removed from the Register in the following circumstances: (1) a Unit Holder transfers their Units; or (2) a transmission of Units occurs; 8.1.7 any other details the Responsible Entity considers appropriate. 8.2 Except to the extent provided in this Constitution the Person from time to time entered in the Register as the holder of a Unit shall be the only Person required to be recognized by the Responsible Entity as entitled to such Unit or to exercise or enjoy the rights and privileges attaching thereto. 8.3 … 8.4 … 8.5 The Responsible Entity will comply with its obligations at Law with respect to access and inspection of Registers. 28 Clause 8.5 must be read in conjunction with s 173 of the Corporations Act which relevantly provides: Right to inspect (1) A company or registered scheme must allow anyone to inspect a register kept under this Chapter. If the register is not kept on a computer, the person inspects the register itself. If the register is kept on a computer, the person inspects the register by computer. (1A) … Inspection fees (2) A member of a company or a registered scheme, a registered option holder or a registered debenture holder may inspect a register kept under this Chapter without charge. Other people may inspect the register only on payment of any fee (up to the prescribed amount) required by the company or scheme. Right to get copies (3) A company or scheme must give a person a copy of the register (or a part of the register) within 7 days if the person: (a) makes an application to the company or registered scheme in accordance with subsection (3A); and (b) pays any fee (up to the prescribed amount) required by the company or scheme. ASIC may allow a longer period to comply with the request. If the register is kept on a computer, the company or registered scheme must give the copy to the person in the prescribed form. (3A) An application is in accordance with this subsection if: (a) the application states each purpose for which the person is accessing the copy; and (b) none of those purposes is a prescribed purpose; and (c) the application is in the prescribed form. … 29 Provisions concerning the calling of meetings of unit holders appear in both the Constitution and the Corporations Act. Section 252A provides that the responsible entity of a registered scheme may call a meeting of scheme members. Section 252B provides that the responsible entity must call, and arrange to hold a meeting to consider and vote on a proposed special or extraordinary resolution upon the request of members with at least 5% of the votes, or of at least 100 members entitled to vote on such resolution. Section 252B(6) provides that the responsible entity must call such a meeting within 21 days after receipt of the request, the meeting to be held not later than two months after such receipt. Section 252C provides that, in the event that the responsible entity fails to call the meeting within 21 days of the request, members with more than 50% of the votes held by those who gave such notice may call and arrange the meeting. The present meeting was called pursuant to s 252D. That section provides that members who hold interests carrying at least 5% of the votes may call a meeting of scheme members to consider and vote on a proposed special resolution or a proposed extraordinary resolution. 30 Section 252D appears to be an alternative process to that prescribed by ss 252B and 252C. Where a meeting is called pursuant to ss 252B and 252C, the responsible entity must pay the reasonable expenses incurred by members in calling the meeting. When a meeting is called pursuant to s 252D, those calling it must pay. 31 Section 601FM deals with removal of a responsible entity by members of a registered scheme. Section 601FM(1) provides: If members of a registered scheme want to remove the responsible entity, they may take action under Division 1 of Part 2G.4 for the calling of a members' meeting to consider and vote on a resolution that the current responsible entity should be removed and a resolution choosing a company to be the new responsible entity. The resolutions must be extraordinary resolutions if the scheme is not listed. 32 Section 601FM appears in Ch 5C of the Corporations Act. Section 601QA(1), which is also in Ch 5C, authorizes the Australian Securities and Investments Commission ("ASIC") to exempt a person from a provision of Ch 5C or to declare that the Chapter applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration. Section 601QA(2) provides that: The exemption or declaration may: (a) apply to all or specified provisions of this Chapter; and (b) apply to all persons, specified persons, or a specified class of persons; and (c) relate to all securities, specified securities or a specified class of securities; and (d) relate to any other matter generally or as specified. 33 On 11 December 2001 ASIC exercised this power by declaring that: Under subsection 601QA(1) of the [Corporations Act] [ASIC] hereby declares that Chapter 5C of the Act applies to all persons as if section 601FM were modified by adding the following subsection after subsection (1): "(1A) Without limiting the generality of subsection (1), in the case of a registered scheme that is listed: (a) the responsible entity must call and arrange to hold a meeting of the members to consider and vote on proposed resolutions to remove the responsible entity and choose a new responsible entity on the request of: (i) members with at least 5% of the votes that may be cast on the resolution; or (ii) at least 100 members who are entitled to vote on the resolution; and (b) members who hold interests carrying at least 5% of the votes that may be cast at a meeting of the members may call and arrange to hold a meeting of the members to consider and vote on a proposed resolution to remove the responsible entity and choose a new responsible entity; and (c) the Court may order a meeting of the members to be called to consider and vote on proposed resolutions to remove the responsible entity and choose a new responsible entity if it is impracticable to call the meeting in any other way." 34 This modification may have been prompted by the fact that the provisions of ss 252B, 252C and 252D apply only to the calling of meetings to consider special or extraordinary resolutions. Section 601FM requires that resolutions to remove and replace the responsible entity be extraordinary resolutions only if the scheme is not listed. Thus it seems that the effect of the modification is to extend the operation of s 601FM(1), to the extent that it adopts the procedures prescribed in Ch 2G.4, so that they apply in the case of a listed, registered scheme where an ordinary resolution to remove and replace the responsible entity is proposed. 35 Between early February and early March this year, there was correspondence between the plaintiff and the third defendant concerning access to the register of unit holders in the Fund. By email dated 7 February 2011, the third defendant made enquiries concerning such access. The plaintiff responded on the same day, providing the requested information. The third defendant then requested a copy of the register. Curiously, in his own affidavit the third defendant refers only to correspondence commencing on 10 February 2011. On that day a copy of the register was supplied to him. He then wrote asserting that it did not contain contact telephone numbers, contact fax numbers, email addresses or "Investor ID". The plaintiff responded on the same day, indicating that the members' register was not required by law to contain telephone or facsimile numbers or email addresses, and that investor IDs had been abolished. On 10 February 2011 the third defendant again wrote, saying: The register requested should comply with Section 169 of the Corporations Act 2001 - this may also include date of investor joining the fund as well as the other items requested below. 36 Section 169 requires that the register contain a unit holder's name, address and the date on which he or she became a unit holder, but does not appear to require any further, presently relevant information. 37 On 16 February 2011 the plaintiff responded to the letter of 10 February, saying that the writer, Ms Snow, was "liaising with our company secretary and registry services providers and will revert shortly". The third defendant responded, saying, "Thank you Caroline - looking forward to the result". On 22 February 2011 the third defendant sent an email saying, "It's been about a week now since your email below. I would like the upgraded PIF register as requested earlier (more detail)". On 1 March 2011 the third defendant again wrote, noting that it had been seven days since his last request, and again asking for contact names, contact telephone numbers, contact fax numbers, email addresses (if provided) and investor IDs. On 3 March 2011 the plaintiff wrote to the third defendant noting that the register had been provided on 10 February 2011, and that further items had been requested. It said that the information provided on 10 February 2011 complied with the requirements of the Corporations Act, and that there was no requirement that the register contain telephone numbers, facsimile numbers or email addresses. The writer again pointed out that "investor IDs" had been abolished. 38 On 6 March 2011 the third defendant again wrote to the plaintiff, requesting information concerning contact names, and asking that the plaintiff, "reconsider providing all telephone contact numbers you have available for PIF investors in another Excel column, as I feel this may be a violation or a hindrance against the spirit [sic] Section 169 of the 2001 Corporations Act". He also suggested that if he did not receive satisfaction he would refer the matter to ASIC. The plaintiff responded on 9 March 2011, declining to provide further information and denying any obligation to do so. There was also a suggestion that the plaintiff was concerned, justifiably or otherwise, that the third defendant might misuse the information. That is where the matter rested. 39 As I have said, the notice of meeting was dated 16 May 2011, some three months after the provision of the register to the third defendant. It is common ground that the register was used as the sole basis for sending the notice of meeting. One might readily infer that over the three month period, there were changes in unit ownership and in relevant addresses. Mr Armstrong conceded the possibility of changes in the register between 10 February and 16 May 2011. He said, in cross-examination that he had first met with the defendants in about February or March 2011. He knew that the units were listed and traded and that membership was changing all the time, although in extremely low volumes. He knew that the notice of meeting had to go to all members, and that he needed an up-to-date register. He said that he used the most up-to-date register available to him, although he knew that it was created in February. He therefore knew that it was three months out of date at the time that the notice of meeting was issued. He said: We knew the register was out of date but we considered based on the low level of trading that it was materially accurate to the investors, and I would say based on the number of return envelopes we have had that that has been - that has remained the case. 40 He said that 133 notices were returned, apparently as not having been delivered. The plaintiff asserts that about 119 members as at 16 May 2011, were not on the register as at 10 February 2011. It also asserts that 263 people had, during that period, changed their address details. At the hearing on 6 July 2011 Mr Armstrong said that on 5 July 2011, he had received information concerning those members from the plaintiff, and that he had instructed staff to send notices of meeting to them. No doubt he meant that he had directed that they send the original notice and an indication that the meeting had been adjourned to 14 July 2011. The cost of obtaining a copy of the register was $275.00. Mr Armstrong accepted that it was not beyond Castlereagh's "expense account" to pay it. He said however that: My understanding was that the Action Group had requested the register on several occasions and it hadn't been provided. 41 It is not entirely clear whether he was referring to the correspondence to which I have referred or to some other request. However, in the course of argument, it appeared to be accepted that there had been no further contact concerning the supply of a register after 9 March 2011 and prior to 16 June 2011. Mr Armstrong said that he considered it appropriate that the February register be used. Although the defendants did not accept the figures mentioned above (119 and 263) they did not seriously challenge them. 42 I infer that notices of meeting were not sent to the 119 members who were added to the register between 10 February and 16 May 2011, and that 263 other members had changed their addresses on the register during that period, and that some of them probably did not receive the notices. As I understand the position, the defendants do not accept those inferences, but they do not seriously dispute their availability. They suggest that those members, or some of them, may have learnt of the meeting as the result of information sent out by the plaintiff. However the question is not whether they knew of the meeting, but rather whether or not they were given notice in accordance with the requirements of the Constitution and the Corporations Act. Informal notice may go to the exercise of any discretion to excuse non-compliance. 43 Clause 9.1 of the Constitution provides that: General Meetings … may be called by the Board [of the plaintiff] and held in the manner determined by the Board. Except as permitted by the Law, no other person may convene a general meeting of the Scheme. 44 The reference to the "Law" is presumably to the Corporations Act. Clause 9.4 provides that not less than 21 days' notice of a general meeting or such other period prescribed by the Law may be given by the board in the form and in the manner the board thinks fit. It also provides that: The non-receipt of a notice of any general meeting by, or the accidental omission to give notice to, any person entitled to notice does not invalidate any resolution passed at that meeting. 45 Clause 29.1 provides that: Any notice required to be given to a Unit Holder under this Constitution or the Corporations Act or to the Responsible Entity will, if posted, be deemed to have been duly given if it be in writing and either delivered to, or sent by prepaid post addressed to the Unit Holder at the Unit Holder's last known address appearing in the Register. 46 There is an apparent inconsistency between cl 29.1 and cll 29.2.1(3) and 29.2.2(3). Whilst cl 29.1 provides for service at the address on the Register, cll 29.2.1 and 29.2.2 seem to contemplate service at the last address known to the person serving the notice. In my view, cll 29.2.1 and 29.2.2 deal with the situation in which the person serving the notice has knowledge of an address which supersedes that in the register. In any event, even the broadest reading of cll 29.2.1 and 29.2.2 would not excuse the failure to give notice to persons who became unit holders after 10 February 2011. 47 As I have said, the defendants submit that the material distributed by the plaintiff on 24 May 2011 was sufficient to satisfy the requirement as to notice. The difficulty with this approach is that both Ch 2G.4 and the Constitution require that a meeting be called by giving notice. Hence the notice must be a document issued by, or on behalf of those who are calling the meeting. That some other person provides similar information may go to the question of whether or not particular unit holders have become aware of the meeting, but it does not go to the question of whether there has been compliance with requirements concerning the calling of the meeting. Further, although the plaintiff's material was dated 24 May 2011, the evidence demonstrates that it was sent on 27 May 2011. It therefore did not meet the requirement as to length of notice. The defendants also concede that the location of the meeting was not included in that material. They point out that notice of the meeting has been on the Castlereagh website and in the announcements section of the Fund's webpage since about 20 May 2011. For the reasons which I have given, those facts offer no substitute for service as required by the Corporations Act and by the Constitution. I accept that Castlereagh has now taken steps to effect service of the notice on persons who were not previously served. Again, that does not change the fact of non-compliance. 48 The defendants seek to rely upon the provision of cl 9.4 of the Constitution which provides that non-receipt of a notice of general meeting by, or the accidental omission to give notice to, any person does not invalidate any resolution passed at a meeting. It is said that this clause is "consistent with the declaratory provisions in sections 1322(2) and (3) of the Act relating to procedural irregularities". However cl 9.4 relates only to non-receipt of a notice which has actually been sent or to an accidental omission to send such a notice. It does not apply to a deliberate decision to disregard the Constitution. 49 I turn to the question of relief pursuant to s 1322 of the Corporations Act. Section 1322 provides as follows: (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, and 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 of 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; (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. (5) An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence. (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. 50 The plaintiff submits that failure to give notice is not a procedural irregularity. In making this submission it relies upon a number of cases in which it has been said that to deprive an interested person of the right to vote is a substantive matter. See Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd (2005) 194 FLR 322, City Pacific Ltd v Bacon (No 2) (2009) 178 FCR 81 at 51-52 and Scullion v Family Planning Association of Qld (1986) 4 ACLC 78. See also the decision of Young J in PW Saddington & Sons Pty Ltd v The Companies Code (1990) 19 NSWLR 674 at 675 where his Honour said: Although the court's power under s 539 is, as has been held over a large number of years, an extremely wide one, there are limitations to it. Section 539 indicates in its text that it is to deal with procedural irregularities. … However, I am quite sure that s 539 does not cover the situation where parties actually know that the meeting that they are convening is invalid and attend to purport to pass resolutions which they know can only have any validity at all if the court acts under s 539. A deliberate choice to convene an invalid meeting is not a procedural irregularity within s 539. 51 There is much to be said for this proposition. However, in the present case, no resolutions, other than for the appointment of the chair and to adjourn the meeting, have yet been considered. It may be arguable that no substantive rights have been affected by the irregularity in calling the meeting. For present purposes, I proceed on the basis that in this case, the failure to give notice in accordance with the Constitution may properly be characterized as being procedural. The first question is whether or not I should act pursuant to s 1322(2), s 1322(3) or s 1322(4) to invalidate the meeting. An order may only be made pursuant to ss 1322(2) and 1322(3) if the Court is satisfied that it cannot otherwise prevent the possibility of substantial injustice. Pursuant to s 1322(6) an order may only be made pursuant to s 1322(4) if no such injustice has been, or is likely to be caused. 52 The defendants submit that no injustice has been, or may be caused to anybody as a result of the irregularities concerning the notice of meeting. I do not accept that proposition. The unit holders have been seriously inconvenienced by the adjournments of the meeting. They have not been consulted about such adjournments. They were discouraged from attending the meetings on 16 and 23 June 2011. The adjournments have brought about significant delay in resolving issues of considerable importance to them. These consequences have not been caused solely by the irregularities in giving notice, but that matter has contributed to their occurrence. I do not necessarily blame any of the parties. It is the combined effect of all of their conduct. It might be said that further delay could be avoided by allowing the meeting to proceed, notwithstanding the irregularities attending its calling. However much has happened since the meeting was called. In particular, the plaintiff, Castlereagh and the defendants have engaged in conduct which has delayed the resolution of the matter. It is likely that some or all of those parties will assert at any meeting that the delay was caused by the conduct of the other party or parties. Such claims may well be relevant to the decisions which the unit holders will be asked to make. The relevant facts should be placed before them in advance of the meeting, with such comments as interested parties may wish to make. The unit holders will then be better informed as to where their best interests lie. This may include making further decisions concerning their proxies. 53 It is also likely that the adjournments have made it more than usually difficult for interested unit holders to attend. The interests of justice dictate that so far as possible, each unit holder have the time contemplated by the Constitution to consider the issues to be raised and to make arrangements to attend the meeting. Each unit holder is also entitled to expect that other unit holders will have the same opportunities. The circumstances surrounding the meeting have become unduly partisan and marked by conflict. That is not a setting in which the interests of unit holders are likely to be best protected. Finally, to allow the meeting to proceed despite the irregularities would create further uncertainty concerning the business of the meeting. There would be the prospect of a successful appeal from my decision. In the circumstances, I conclude that for the meeting to proceed would, or may cause injustice to unit holders which I could not remedy by any order. 54 I accept that the unit holders are, themselves, best equipped to make decisions affecting their investments. In general it is desirable that a meeting, once called, proceed, and that those entitled to vote have the opportunity to do so. However the circumstances in this case are most unusual and, at least to some extent, appear to have been produced by the way in which the meeting was called, as well as by the conduct of the parties to these proceedings and by that of Castlereagh. For similar reasons I decline relief pursuant to s 1322(4). Although the defendants also seek relief pursuant to s 1325D, I understand that provision to relate only to the alleged failure to give notice of a substantial holding. 55 I should add one further comment. Mr Armstrong and counsel for the defendants suggested, if with some diffidence, that Castlereagh had not sought to obtain a current register because of difficulties experienced with the plaintiff in connection with the acquisition of the register which was actually used. It may be that the plaintiff could have been more co-operative, but I am far from convinced that it would have failed to perform its duty pursuant to the Corporations Act, had a current register been requested.

A QUORUM 56 There is a second reason for holding that the meeting should not proceed. Clauses 10.2-10.6 of the Constitution deal with the issue of a quorum at meetings. Those clauses provide: 10.2 Except as provided for at subclause 10.3 below, two Unit Holders present constitute a quorum for a general meeting. No business may be transacted at any meeting except the election of a Chairman and the adjournment of the meeting unless the requisite quorum is present at the commencement of the business. 10.3 The quorum for a meeting at which any resolution is proposed (whether ordinary or Extraordinary) to remove the Responsible Entity of the Scheme, is a minimum of four persons holding or representing in person, by proxy or attorney at least 51% of Units on issue in the Scheme by number. 10.4 The quorum for a meeting at which any resolution is proposed (regardless of the type of resolution) to amend clause 10.2 or clause 10.3 is at least four persons holding or representing in person, by proxy or attorney at least 51% of the Units by number. 10.5 If at any time the scheme has only one Unitholder, that Unitholder or his or her representative or proxy constitutes a quorum. Adjournment in absence of quorum 10.6 If within 15 minutes after the time specified for a general meeting a quorum is not present, the meeting, if convened upon a requisition by Unit Holders or called by Unit Holders, is to be dissolved, and in any other case it is to be adjourned to the same day in the next week (or, where that day is not a business day, the business day next following that day) at the same time and place and if, at the adjourned meeting, a quorum is not present within 30 minutes after the time specified for holding the meting, the meeting is to be dissolved. 57 The plaintiff submits that as there was no quorum at the adjourned meeting on 23 June, it was dissolved pursuant to cl 10.6. The defendants submit that in so far as these clauses apply to a meeting called for the purpose of replacing the responsible entity, they are invalid because they are inconsistent with the Corporations Act. Secondly, they do not necessarily admit the absence of a quorum on 23 June 2011. Thirdly, they submit that the Chairman retained a general discretion to adjourn the meeting at any time and, particularly, within the first 15 minutes. 58 As to the question of the validity of the clauses, the defendants submit that s 601FM of the Corporations Act requires, in the case of a listed scheme, that a responsible entity may be removed by vote of 50% plus one of the votes cast by members entitled to vote at the meeting. They submit that because cl 10.3 of the Constitution purports to require a quorum of four persons holding or representing at least 51% of the units on issue in the scheme, it is inconsistent with s 601FM. The defendants do not offer any basis for the proposition that a provision relating to a quorum is inconsistent with the requirement that the resolution be treated as adopted if more than half of those attending the meeting vote in favour. Such an approach, taken to its logical conclusion, would exclude any provision for a quorum. The second difficulty with the argument is that s 601FM expressly adopts the procedure prescribed in Div 1 of Pt 2G.4. Although that Division does not contain any provision relating to quorums, meetings called pursuant to that section are subject to s 252R. Section 252R(2) provides: (1) This section applies to a registered scheme subject to the provisions of the scheme's constitution. (2) The quorum for a meeting of registered scheme members is 2 members and the quorum must be present at all times during the meeting (3) In determining whether a quorum is present, count individuals attending as proxies or body corporate representatives. However, if a member has appointed more than 1 proxy or representative, count only 1 of them. If an individual is attending both as a member and as a proxy or body corporate representative, count them only once. (4) A meeting of the scheme's members that does not have a quorum present within 30 minutes after the time for the start of the meeting set out in the notice of meeting is adjourned to the date, time and place the responsible entity specifies. If the responsible entity does not specify 1 or more of those things, the meeting is adjourned to: (a) if the date is not specified--the same day in the next week; and (b) if the time is not specified--the same time; and (c) if the place is not specified-- same place. (5) If no quorum is present at the resumed meeting within 30 minutes after the time for the start of the meeting, the meeting is dissolved. 59 Subsection 252R(1) provides that the section is subject to the provisions of the relevant scheme's constitution. This means that such constitution may vary any of the provisions relating to a quorum. In those circumstances I see no way in which the constitutional provisions to which I have referred can be said to be inconsistent with s 601FM. It may be that if the effect of such provisions were to make the right to replace the responsible entity nugatory, the result might be otherwise. Although counsel for the defendants suggested such a conclusion, no basis was demonstrated for it in this case. I hold that those provisions of the Constitution are valid. 60 The plaintiff did not raise the question of a quorum in connection with the meeting on 16 June 2011. It seems to have been unwilling so to do in view of the agreement to which it was a party. Of course, that agreement did not bind other unit holders. The next question is therefore whether or not there was a quorum present on 23 June 2011. The case has been conducted on the basis that Ms Hutson was holding proxies representing more than 50% of those entitled to attend and vote at the meeting. Ms Hutson did not attend the meeting on 23 June 2011. I infer that the members granting such proxies were also probably not in attendance. Counsel for the defendants submits that Ms Hutson was obliged to attend and to vote her proxies. That may be so, and I make no comment upon the proprietary or otherwise of her conduct in not doing so. However, for the purpose of determining whether there was a quorum, one must take account of reality. If Ms Hutson chose not to attend, then there was no quorum. As the meeting was called by unit holders, in the absence of the prescribed quorum, it was dissolved pursuant to cl 10.6. At some stage, counsel suggested that the meeting was not called to remove the plaintiff as responsible entity, but I did not understand that submission to be pursued in argument. 61 Counsel for the defendants submit that the Chairman had a residual power to adjourn the meeting, at least within the 15 minute period, and that he did so. He certainly adjourned the meeting, however it is by no means clear to me that he had power so to do, even within the 15 minute period. Even if it be accepted that at common law the Chairman might have adjourned the meeting in the circumstances which obtained in this case, some effect must be given to provisions such as those contained in cl 10.6 of the Constitution and, for that matter, s 252R(5) of the Corporations Act. Both provisions seem to be designed to ensure that there be an end to a meeting where no quorum is present. Although cl 10.2 contemplates the possible adjournment of a meeting where there is no quorum, to the extent that cl 10.6 applies, it seems specifically to deal with the matter. In my view, even within the 15 minute period, the Chairman did not have the power to adjourn the meeting. 62 In fact, the evidence demonstrates that the adjournment did not take place within 15 minutes of the commencement of the meeting. It is common ground that the meeting started at 11.00 am. Thus any power to adjourn it before dissolution had to be taken prior to 11.15 am. Although the evidence is not entirely satisfactory, it offers a clear basis for inferring that the adjournment occurred at a later time Before the meeting there had been discussion in which it was suggested that both Mr Ferrier (on behalf of Castlereagh) and Ms Hutson (on behalf of the plaintiff) would address the meeting. However Ms Hutson refused to attend the meeting and said that she would only speak to the members afterwards. The Chairman says in his affidavit that he opened the meeting at about 11.00 am. He informed the unit holders that Mr Ferrier would speak to them, and that Ms Hutson would address them once the meeting had been adjourned. Mr Ferrier addressed the unit holders. Following that address, the Chairman read the substance of his prepared script which extended over several pages. He then adjourned the meeting and went looking for Ms Hutson. He obtained a telephone number and rang her at about 12.50 pm. His affidavit suggests that the telephone call was made shortly after the end of the meeting. When one considers his purpose, namely to invite Ms Hutson to speak to the members, it is obvious that he would have had to do so shortly after the adjournment and before those attending had dispersed. It is a reasonable inference that the meeting was adjourned shortly before 12.50 pm, almost two hours after it had commenced. 63 The only other evidence as to the time of completion of the meeting comes from Mr Armstrong who, at para 50 of his affidavit, said: I was in the meeting room for the meeting, and for an informal questions and answers session after the formal meeting, from about 10.50 am to about 12.45 pm. 64 He also said that at about 12.45 pm, after the meeting had concluded, and after he had been unable to locate Ms Hutson, he asked somebody to look for her. Although the time of 12.45 pm coincides with that given by the Chairman as the time of adjournment, Mr Armstrong seems to imply that there was an informal question and answer session after the formal meeting. Such a view is inconsistent with the Chairman's position. His recollection was that he read his script and adjourned the meeting after Mr Ferrier's address. The address seems likely to have been the question and answer session referred to by Mr Armstrong. The Chairman would probably have a better recollection as to when he adjourned the meeting than would Mr Armstrong, given that the former performed the relevant act. I infer, on the balance of probabilities, that the meeting concluded at about 12.45 pm. In those circumstances, were the meeting otherwise valid, I would conclude that it was dissolved at 12.15 pm. For the reasons already given, I would not exercise any available power to relieve against the consequences of the absence of a quorum.

OTHER MATTERS 65 These conclusions make it unnecessary that I consider other matters raised in argument, given the urgent context in which the question of validity of the meeting has arisen. Should the parties wish to pursue these matters further, they should apply accordingly.

ORDERS 66 In conclusion I am of the view that the irregularity in giving notice of the meeting has caused, or may cause substantial injustice which cannot be remedied by any order of the Court. I therefore declare the meeting to be invalid. I shall grant relief pursuant to s 1322(3) and decline relief pursuant to s 1322(4). Further, had I not declared the meeting to be invalid upon the ground of failure to give the required notice, I would have declared that it was dissolved at 11.15 am on 23 June 2011. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Corporations Act 2001(Cth)ss 169, 173, 252A, 252B, 252C, 252D, 252G, 252R, 252Z, 601FM, 601QA, 671B, 1322, 1325D

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (2)

Cases Cited (4)