Poseidon Nickel Ltd, in the matter of Poseidon Nickel Ltd [2018] FCA 1063

Poseidon Nickel Ltd, in the matter of Poseidon Nickel Ltd [2018] FCA 1063

It is just and equitable and causes no substantial injustice to declare that the offer for sale or sale of the shares listed was not invalid by reason of failure to comply with disclosure obligations under ss 707(3) and 727(1) of the Corporations Act 2001 (Cth), and to relieve sellers (other than Jefferies LLC, Petra Capital Pty Ltd, and Pershing Australia Nominees Pty Ltd) from civil liability, as the failures were not due to blatant or flagrant disregard of the provisions, but rather carelessness or misunderstanding without dishonesty.

Jurisdiction
Australia
Judgment Date
17 July 2018
Procedural Posture
Application for Declarations and Orders Under S 1322 of the Corporations Act 2001 (cth) / Judgment on Application
Outcome
Declarations and partial relief granted; sales not invalid, conditional civil liability relief to sellers, but exclusion of certain professional parties from relief.
Legal Topics
['disclosure Requirements for Share Issues' 'relief From Civil Liability Under Corporations Act' 'validity of Share Sales Without Disclosure' 'cleansing Notices' 'cleansing Prospectus' 'on Selling of Shares Within 12 Months' 'procedural Invalidity in Securities Transactions']
['corporations Law'] ['disclosure Requirements for Share Issues' 'relief From Civil Liability Under Corporations Act' 'validity of Share Sales Without Disclosure' 'cleansing Notices' 'cleansing Prospectus' 'on Selling of Shares Within 12 Months' 'procedural Invalidity in Securities Transactions']

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Procedural Posture

Application for Declarations and Orders Under S 1322 of the Corporations Act 2001 (cth) / Judgment on Application

Legal Issues

  1. 1 ['Whether share sales in contravention of disclosure obligations under ss 707(3) and 727(1) of the Corporations Act 2001 (Cth) are invalid' 'Whether relief from civil liability should be granted to sellers for such contraventions' 'Whether relief should be extended to certain parties involved in the contravention' 'Form and appropriateness of orders in such cases']

Ratio Decidendi

It is just and equitable and causes no substantial injustice to declare that the offer for sale or sale of the shares listed was not invalid by reason of failure to comply with disclosure obligations under ss 707(3) and 727(1) of the Corporations Act 2001 (Cth), and to relieve sellers (other than Jefferies LLC, Petra Capital Pty Ltd, and Pershing Australia Nominees Pty Ltd) from civil liability, as the failures were not due to blatant or flagrant disregard of the provisions, but rather carelessness or misunderstanding without dishonesty.

Court Disposition

Declarations and partial relief granted; sales not invalid, conditional civil liability relief to sellers, but exclusion of certain professional parties from relief.

Orders

  • ['Declaration under s 1322(4)(a) that offers/sales of listed shares are not invalid for failure to issue a notice under s 708A or prospectus, or noncompliance with ss 707(3), 727(1) for specified period.' 'Holders may apply for different order within next 12 months.' 'Relief from civil liability (s 1322(4)(c)) for...