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

Federal Court of Australia

Wingara AG Limited, in the matter of Wingara AG Limited [2021] FCA 687 File number: VID 317 of 2021

Judgment of: MOSHINSKY J

Date of judgment: 18 June 2021

Catchwords: CORPORATIONS – application for orders under s 1322 of the Corporations Act 2001 (Cth) to address certain irregularities – where a share placement occurred on the purported basis of a notice as referred to in s 708A(5)(e) – where the company was not entitled to rely on s 708A(5) because it did not satisfy the requirement in s 708A(5)(b) – where the irregularity was the result of an oversight – where no material to suggest prejudice to any third party if orders made

Legislation: Corporations Act 2001 (Cth), ss 707, 708A, 713, 727, 1322

Cases cited: Re ICandy Interactive Limited [2018] FCA 533

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 24

Date of hearing: 16 and 18 June 2021

Counsel for the Plaintiff: Ms P Thiagarajan

Solicitor for the Plaintiff: DLA Piper Australia

ORDERS VID 317 of 2021 IN THE MATTER OF WINGARA AG LIMITED (ACN 009 087 469) WINGARA AG LIMITED Plaintiff

order made by: MOSHINSKY J DATE OF ORDER: 18 JUNE 2021

THE COURT ORDERS THAT:

1. 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: (a) the failure of a notice dated 6 September 2016 purportedly issued under s 708A(5)(e) of the Corporations Act 2001 (Cth), to exempt the plaintiff and sellers from the obligation of disclosure under the Corporations Act; and (b) any consequential failure by the plaintiff and sellers to comply with ss 707(3) and 727(1) of the Corporations Act. 2. The plaintiff and its current and former directors and officers are relieved of any civil liability arising out of any contravention of ss 707(3) and 727(1) of the Corporations Act in relation to the offer for sale or the sale of the shares referred to in Annexure B. 3. Any sellers of the shares referred to in Annexure B are relieved from any civil liability arising out of any contravention of ss 707(3) and 727(1) of the Corporations Act in relation to the offer for sale or the sale of such shares. 4. As soon as it is reasonably practicable, a sealed copy of these orders is to be served on the Australian Securities and Investments Commission (ASIC) and upon service of these orders, ASIC is to include these orders on its database. 5. As soon as it is reasonably practicable, a sealed copy of these orders is to be sent to the last known email address of each person to whom the shares referred to in Annexure B were issued. 6. As soon as it is reasonably practicable, the plaintiff is to publish an announcement to the Australian Securities Exchange (ASX) in which a copy of these orders is included. 7. For a period of 28 days from the date of these orders, 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. 8. There be no orders as to costs. ANNEXURE B No. Date of Issue Security Type Date of cleansing notice Number issued Basis for issue 1. 22 August 2016 FPOS 6 September 2016 9,996,662 Placement