Wingara AG Limited, in the matter of Wingara AG Limited [2021] FCA 687

Wingara AG Limited, in the matter of Wingara AG Limited [2021] FCA 687

Orders should be granted to validate the offer for sale and sale of shares and relieve Wingara AG Limited, its current and former directors and officers, and sellers from civil liability arising from contraventions of disclosure requirements, because the irregularity arose from inadvertent oversight without dishonesty, no evidence of prejudice or substantial injustice was adduced, and adequate information was available to investors.

Parties
Plaintiff: Wingara AG Limited
Jurisdiction
Australia
Judgment Date
18 June 2021
Procedural Posture
Corporations – Application for Orders to Address Irregularities Under S 1322 of the Corporations Act 2001 (cth) / Final Judgment After Contested Application, Orders Made
Outcome
Orders in terms sought by Wingara AG Limited granted; irregular share placements validated; civil liability relief given; no order as to costs.
Legal Topics
Irregularities, Share Placements, Cleansing Notice, Civil Liability, Relief From Liability
Corporations Law Irregularities Share Placements Cleansing Notice Civil Liability Relief From Liability

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Parties

Wingara AG Limited

Plaintiff

Procedural Posture

Corporations – Application for Orders to Address Irregularities Under S 1322 of the Corporations Act 2001 (cth) / Final Judgment After Contested Application, Orders Made

Legal Issues

  1. 1 Whether orders should be made under s 1322 of the Corporations Act 2001 (Cth) to validate a share placement affected by an irregular 'cleansing notice' that did not satisfy statutory requirements.
  2. 2 Whether the company and relevant persons should be relieved from civil liability for contraventions of disclosure provisions relating to that share placement.

Ratio Decidendi

Orders should be granted to validate the offer for sale and sale of shares and relieve Wingara AG Limited, its current and former directors and officers, and sellers from civil liability arising from contraventions of disclosure requirements, because the irregularity arose from inadvertent oversight without dishonesty, no evidence of prejudice or substantial injustice was adduced, and adequate information was available to investors.

Court Disposition

Orders in terms sought by Wingara AG Limited granted; irregular share placements validated; civil liability relief given; no order as to costs.

Orders

  • Any offer for sale or sale of the shares referred to in Annexure B, during the period from their respective dates of issue to the date of these orders (inclusive), is not invalid by reason of the failure to satisfy s 708A(5) of the Corporations Act 2001 (Cth) or consequential non-compliance with ss 707(3) and 727(1).
  • The plaintiff and its current and former directors and officers are relieved of any civil liability for contraventions of ss 707(3) and 727(1) in relation to the shares.