RCR Tomlinson Ltd (ACN 008 898 486); In the matter of RCR Tomlinson Ltd (ACN 008 898 486) [2009] FCA 1130

RCR Tomlinson Ltd (ACN 008 898 486); In the matter of RCR Tomlinson Ltd (ACN 008 898 486) [2009] FCA 1130

The Court granted relief because RCR's failure to give the s 708A notice within time was an inadvertent procedural irregularity, RCR had acted honestly and promptly after discovering the failure, RCR otherwise satisfied the conditions that would have allowed it to give the notice within time, there was no excluded information and no substantial injustice had been or was likely to be caused to any person.

Jurisdiction
Australia
Judgment Date
06 October 2009
Procedural Posture
Corporations Law Application Under S 1322(4)(a) and S 1322(4)(d) of the Corporations Act 2001 (cth) / Application for Orders Extending Time to Give a Notice Required Under S 708 A(6) and Consequential Ancillary Relief
Outcome
Application granted; orders made extending time and deeming the notice effective as if given on 13 July 2009.
Legal Topics
['share Placement' 'disclosure to Investors' 'on Sale of Securities' 'extension of Time' 'procedural Irregularity' 'corporations Act 2001 (cth) S 1322']
['corporations Law'] ['share Placement' 'disclosure to Investors' 'on Sale of Securities' 'extension of Time' 'procedural Irregularity' 'corporations Act 2001 (cth) S 1322']

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Procedural Posture

Corporations Law Application Under S 1322(4)(a) and S 1322(4)(d) of the Corporations Act 2001 (cth) / Application for Orders Extending Time to Give a Notice Required Under S 708 A(6) and Consequential Ancillary Relief

Legal Issues

  1. 1 ['Whether the period of 5 business days in s 708A(6)(a) of the Corporations Act 2001 (Cth) should be extended for RCR to give notice in respect of shares issued on 10 July 2009.' 'Whether the failure to issue the notice was due to inadvertence rather than dishonesty or wilful intention.' 'Whether the requirements of s 1322(6)(a) and s 1322(6)(c) were satisfied, including whether any substantial injustice had been or was likely to be caused to any person.']

Ratio Decidendi

The Court granted relief because RCR's failure to give the s 708A notice within time was an inadvertent procedural irregularity, RCR had acted honestly and promptly after discovering the failure, RCR otherwise satisfied the conditions that would have allowed it to give the notice within time, there was no excluded information and no substantial injustice had been or was likely to be caused to any person.

Court Disposition

Application granted; orders made extending time and deeming the notice effective as if given on 13 July 2009.

Orders

  • ['In respect of the 4,270,644 shares in the Plaintiff issued on 10 July 2009 (the relevant securities), the period of 5 business days referred to in s 708A(6)(a) of the Corporations Act 2001 be extended to the second business day after the day on which these orders are entered.' 'The notice under s 708A(5)(e) of the...