In the matter of ABI Australia Holding Pty Ltd [2017] NSWSC 1822

In the matter of ABI Australia Holding Pty Ltd [2017] NSWSC 1822

ASIC's record was incorrect because the Form 201 did not reflect the number of shares actually issued when the transaction was implemented, and ABI's own share register recorded 732,784,067 ordinary shares. Rectification was appropriate to prevent persons accessing ASIC's register from being misinformed. UK 16 intended and consented to take up the shares required to implement the transaction, namely 732,784,067 shares, and its representative was present at the board meeting at which those shares were issued; it was therefore just and equitable to validate the registration and no substantial injustice would be caused.

Jurisdiction
Australia
Judgment Date
05 December 2017
Procedural Posture
Originating Process Seeking Orders Under S 1322(4)(b) and S 1322(4)(a) of the Corporations Act 2001 (cth) for Rectification of Asic's Register and Validation of Company Registration / Principal Judgment; Ex Tempore Determination of the Originating Process
Outcome
The Court made orders for rectification of ASIC's register in respect of ABI Australia Holding Pty Ltd and for validation of the registration of ABI Australia Holding Pty Ltd.
Legal Topics
['rectification of ASIC Register' 'company Registration' 'share Issue on Incorporation' 'consent of Proposed Member' 'validation Under S 1322(4) of the Corporations Act 2001 (cth)']
['corporations Law' 'equity'] ['rectification of ASIC Register' 'company Registration' 'share Issue on Incorporation' 'consent of Proposed Member' 'validation Under S 1322(4) of the Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Originating Process Seeking Orders Under S 1322(4)(b) and S 1322(4)(a) of the Corporations Act 2001 (cth) for Rectification of Asic's Register and Validation of Company Registration / Principal Judgment; Ex Tempore Determination of the Originating Process

Legal Issues

  1. 1 ["Whether ASIC's register in respect of ABI Australia Holding Pty Ltd should be rectified to show that the initial number of ordinary shares issued to ABI Southern Holding Ltd on 12 October 2016 was 732,784,067 ordinary shares rather than 2,114,092,718 shares." 'Whether the registration of ABI Australia Holding Pty Ltd on 12 October 2016 should be declared not invalid by reason of any contravention of s 117(5) of the Corporations Act 2001 (Cth) concerning consent of the proposed member under s 117(2)(k).']

Ratio Decidendi

ASIC's record was incorrect because the Form 201 did not reflect the number of shares actually issued when the transaction was implemented, and ABI's own share register recorded 732,784,067 ordinary shares. Rectification was appropriate to prevent persons accessing ASIC's register from being misinformed. UK 16 intended and consented to take up the shares required to implement the transaction, namely 732,784,067 shares, and its representative was present at the board meeting at which those shares were issued; it was therefore just and equitable to validate the registration and no substantial injustice would be caused.

Court Disposition

The Court made orders for rectification of ASIC's register in respect of ABI Australia Holding Pty Ltd and for validation of the registration of ABI Australia Holding Pty Ltd.

Orders

  • ['Pursuant to s 1322(4)(b) of the Corporations Act, direct the Australian Securities and Investments Commission (ASIC) to rectify the register kept by ASIC in respect of the First Plaintiff, ABI Australia Holding Pty Ltd, to show that, on 12 October 2016, the initial number of ordinary shares issued to the Second...