Wave Capital Limited [2003] FCA 969

Wave Capital Limited [2003] FCA 969

The statutory period for application to ASX under s 723(3) and s 724(1)(b) is extendable by the Court under s 1322, and as no substantial injustice would arise to any person, relief ought to be granted. Prompt remedial action was taken by the directors upon discovery of the error, thus guaranteeing no prejudice to shareholders or creditors. Costs should not be met out of company funds due to board and secretary responsibility for oversight.

Parties
Applicant: Wave Capital Limited
Jurisdiction
Australia
Judgment Date
12 September 2003
Procedural Posture
Corporations Application / Final Judgment on Application to Extend Statutory Time for Quotation Application
Outcome
application granted
Legal Topics
Prospectus Requirements, Rights Issue, Quotation of Shares, Corporate Restructuring, Statutory Time Limits, Court Discretion Under S 1322
Corporations Law Prospectus Requirements Rights Issue Quotation of Shares Corporate Restructuring Statutory Time Limits Court Discretion Under S 1322

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Parties

Wave Capital Limited

Applicant

Procedural Posture

Corporations Application / Final Judgment on Application to Extend Statutory Time for Quotation Application

Legal Issues

  1. 1 Whether the Court should extend the statutory period for making application for ASX quotation under s 723(3) and s 724(1)(b) of the Corporations Act due to oversight by company secretary.
  2. 2 Whether exercise of discretion under s 1322(4) of the Corporations Act is warranted in circumstances of honest error and absence of substantial injustice.

Ratio Decidendi

The statutory period for application to ASX under s 723(3) and s 724(1)(b) is extendable by the Court under s 1322, and as no substantial injustice would arise to any person, relief ought to be granted. Prompt remedial action was taken by the directors upon discovery of the error, thus guaranteeing no prejudice to shareholders or creditors. Costs should not be met out of company funds due to board and secretary responsibility for oversight.

Court Disposition

application granted

Orders

  • The period of seven days in s 723(3)(a) and s 724(1)(b)(i) of the Corporations Act in respect of the prospectus dated 29 July 2003 is extended to the date contemplated by order 3.
  • ASIC to include the Court's order on its database upon service.