In the matter of NSX Limited [2024] NSWSC 989

Supreme Court New South Wales

Medium Neutral Citation: In the matter of NSX Limited [2024] NSWSC 989 Hearing dates: 2 August 2024 Date of orders: 2 August 2024 Decision date: 02 August 2024 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order made for cancellation of certain shares issued in two placements with that cancellation taken to be a reduction in company's share capital Catchwords: CORPORATIONS – share issues – where inadvertent contravention of s 606 of the Corporations Act 2001 (Cth) – where persons concerned acted without improper intent – whether an order should be made under s 1325A of the Corporations Act 2001 (Cth). Legislation Cited: Corporations Act 2001 (Cth), ss 258E(3), 606, 611, 1325A, 1325D. Cases Cited: - Australian Securities and Investments Commission v Craigside Company Ltd (No 2) [2014] FCA 371 - Re Sandon Capital Investments Ltd [2019] NSWSC 1512 Category: Principal judgment Parties: NSX Limited (Plaintiff) ISX Financial EU PLC (Defendant) Representation: Counsel: J C Giles SC/T Rogan (Plaintiff) T J Boyle (Defendant)

Solicitors: HWL Ebsworth (Plaintiff) Parry & Associates Legal Services (Defendant) File Number(s): 2024/280240

Judgment

Nature of the application 1. By Originating Process filed on 31 July 2024, the Plaintiff, NSX Limited ("NSX") applies under s 1325A of the Corporations Act 2001 (Cth) ("Act") for an order that approximately 77.59 million fully paid ordinary shares in NSX registered in the name of ISX Financial EU PLC ("ISX") on 8 March 2024 and 31 May 2024 be cancelled, with the cancellation being taken to be a reduction in NSX's share capital authorised by s 258E(3) of the Act, and ancillary orders. That application has the consent of ISX, as the party whose shares would be cancelled. 2. Notice of the application has been given to the Australian Securities Exchange ("ASX") and the application is brought, at least in part, to address concerns of ASX, and a suspension of trading of NSX's shares on ASX was lifted after NSX had announced its intent to bring these proceedings. Notice of the application has also been given to the Australian Securities and Investments Commission ("ASIC"), which sought further information as to several aspects of the application, which NSX provided, and has confirmed that it neither supports nor opposes the application and does not intend to appear at this hearing.