Bowen Coking Coal Limited, in the matter of Bowen Coking Coal Limited [2020] FCA 1738

Federal Court of Australia

Bowen Coking Coal Limited, in the matter of Bowen Coking Coal Limited [2020] FCA 1738 File number(s): QUD 368 of 2020

Judgment of: GREENWOOD J

Date of judgment: 30 November 2020

Catchwords: CORPORATIONS – consideration of an application under s 1322 of the Corporations Act 2001 (Cth) (the "Act") in relation to a failure on the part of the applicant to lodge a notice, within time, on the Market Announcement Platform ("MAP") of the Australian Securities Exchange in accordance with s 708A(5)(e) and s 708A(6)(a) of the Act in relation to an issue of 60 million shares in the applicant, Bowen Coking Coal Limited, on 9 November 2020 by the applicant

Legislation: Corporations Act 2001 (Cth), ss 707, 708, 708A(5)(e), 727, 1322

Division: General Division

Registry: Queensland

Practice Area: Commercial and Corporations

Sub-area: Economic Regulator, Competition and Access

Number of paragraphs: 10

Date of hearing: 30 November 2020

Counsel for the Applicant: D J Pyle

Solicitor for the Applicant: HopgoodGanim Lawyers

ORDERS QUD 368 of 2020 IN THE MATTER OF BOWEN COKING COAL LMIITED ACN 064 874 620 BOWEN COKING COAL LIMITED ACN 064 874 620 Applicant

order made by: GREENWOOD J DATE OF ORDER: 30 NOVEMBER 2020

THE COURT ORDERS THAT:

1. In respect of the 60,000,000 ordinary fully paid shares of the applicant, which were issued on 9 November 2020: (a) pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (Corporations Act), the five business days referred to in s 708A(6)(a) of the Corporations Act be extended to 24 November 2020; (b) pursuant to s 1322(4)(a) of the Corporations Act, it is declared that a notice under s 708A(5)(e) of the Corporations Act given to the Australian Securities Exchange Limited (ASX) in respect of those shares within the period provided for in subparagraph (a) be deemed to take effect as if it had been given to the ASX on the date of issue of those shares; (c) pursuant to s 1322(4)(a) of the Corporations Act, it is declared that any offer for sale, or sale of, those shares during the period after their issue to the date of the orders made in this proceeding is not invalid by any reason of: (i) any failure of a notice under s 708A(5)(e) of the Corporations Act to exempt the sellers from the obligation of disclosure under the Corporations Act; and (ii) the sellers' consequent failure to comply with ss 707(3) or 727(1) of the Corporations Act; and (d) pursuant to s 1322(4)(c) of the Corporations Act, any persons to whom any of those shares were issued, or have been sold, and who have in turn on-sold any of those shares, is relived in whole from any civil liability in respect of: (i) any failure of a notice under s 708A(5)(e) of the Corporations Act to exempt the sellers from the obligation of disclosure under the Corporations Act; and (ii) the sellers' consequent failure to comply with ss 707(3) or 727(1) of the Corporations Act. 2. As soon as reasonably practical after orders are made in these proceedings, the Applicant: (a) serve a sealed copy of the orders: (i) on the Australian Securities and Investments Commission; (ii) on the ASX; and (iii) by express post on each person to whom the shares in paragraph 1 were issued at the address given by each person for recording on the Applicant's register of members; and (b) publish an announcement to the ASX including a sealed copy of the orders made in this proceeding. 3. For a period of 28 days from the date of publication of a copy of the orders made in these proceedings on the ASX website, any person who claims to have suffered substantial injustice or is likely to suffer substantial injustice by the making of any or all of these orders has liberty to apply to vary or to discharge them within that period. 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.