In the matter of Tony Barlow Australia Limited [2005] FCA 363

In the matter of Tony Barlow Australia Limited [2005] FCA 363

Relief was granted because the late lodgement of the Quotation application did not cause and was not likely to cause substantial injustice, the shares had already been issued, accepted for quotation and able to be traded on ASX, the Prospectus and funds raised were central to the Company's recapitalisation and exit from administration, refusal of relief would likely materially prejudice the Company, shareholders and creditors, and the breach arose from error rather than blatant or deliberate non-compliance.

Jurisdiction
Australia
Judgment Date
31 March 2005
Procedural Posture
Application Under Ss 1322(4)(d) and 254 E of the Corporations Act 2001 (cth) for Extension of Time to Lodge an Application for Admission of Quotation of Securities and Validation of Shares Issued Pursuant to a Prospectus / Reasons for Orders Made on 31 March 2005
Outcome
Orders sought made; no order as to costs.
Legal Topics
['extension of Time Under S 1322(4)(d)' 'validation of Issue of Shares Under S 254 E' 'prospectus Quotation Application Requirements' 'substantial Injustice Under S 1322(6)' 'asx Quotation']
['corporations Law' 'securities Regulation'] ['extension of Time Under S 1322(4)(d)' 'validation of Issue of Shares Under S 254 E' 'prospectus Quotation Application Requirements' 'substantial Injustice Under S 1322(6)' 'asx Quotation']

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Procedural Posture

Application Under Ss 1322(4)(d) and 254 E of the Corporations Act 2001 (cth) for Extension of Time to Lodge an Application for Admission of Quotation of Securities and Validation of Shares Issued Pursuant to a Prospectus / Reasons for Orders Made on 31 March 2005

Legal Issues

  1. 1 ['Whether the Court should extend the seven day period referred to in s 723(3)(a) and s 724(1)(b)(i) of the Corporations Act 2001 (Cth) for making the Quotation application.' 'Whether the issue of shares pursuant to the Prospectus should be validated and confirmed under s 254E of the Corporations Act 2001 (Cth).' 'Whether no substantial injustice had been or was likely to be caused to any person if relief were granted.' 'Whether the non-compliance was deliberate or blatant and whether relief would avoid material adverse impact on the Company, shareholders and creditors.' 'Whether a special costs order should be made.']

Ratio Decidendi

Relief was granted because the late lodgement of the Quotation application did not cause and was not likely to cause substantial injustice, the shares had already been issued, accepted for quotation and able to be traded on ASX, the Prospectus and funds raised were central to the Company's recapitalisation and exit from administration, refusal of relief would likely materially prejudice the Company, shareholders and creditors, and the breach arose from error rather than blatant or deliberate non-compliance.

Court Disposition

Orders sought made; no order as to costs.

Orders

  • ['The time for service and hearing of the application filed on 24 March 2005 was abridged.' 'Pursuant to section 1322(4)(d), the period of seven days referred to in section 723(3)(a) and in sub-section 724(1)(b)(i) of the Corporations Act 2001 (Cth) in respect of the prospectus of the Company dated 20 November 2003...