Murray River Organics Limited, in the matter of Murray River Organics Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 13 June 2019
• Neutral Citation: [2019] FCA 931
• Court: Federal Court
• Date: 13 June 2019

FEDERAL COURT OF AUSTRALIA

Murray River Organics Limited, in the matter of Murray River Organics Limited [2019] FCA 931

File number(s):	VID 418 of 2019
Judge(s):	ANDERSON J
Date of judgment:	13 June 2019
Date of publication of reasons:	17 June 2019
Catchwords:	CORPORATIONS – application under s 1322(4)(c) of Corporations Act 2001 (Cth) (Act) for relief of company and its current and former directors and officers from civil liability in respect of failure of company to lodge certain forms and comply with financial reporting obligations – where failure to lodge opt-in notice for relief under ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 – whether persons concerned acted honestly – application under s 1322(4)(d) of Act for extension of time for company to lodge opt-in notice – whether substantial injustice has been or is likely to be caused to any person by statutory non-compliance or proposed orders ; Held: Application granted – failure to lodge opt-in notice resulted from inadvertence – company and its current former directors and officers are relevantly relieved from any civil liability – extension of time granted for company to lodge opt-in notice
Legislation:	Corporations Act 2001 (Cth) Pts 2M.3, 9.5 ss 292, 292(1)(b), 301(1), 314, 314(1), 315, 316(1), 316(2), 319(1), 341(1), 1274(11), 1322, 1322(4), 1322(4)(c), 1322(4)(d), 1322(5), 1322(6), 1322(6)(b), 1322(6)(c) ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (Cth) ss 5, 6(1)(f)
Cases cited:	Australian Securities and Investments Commission v Lewski (2018) 362 ALR 286; 132 ACSR 403 Blaze Asset Pty Ltd v Target Energy Ltd (2009) 177 FCR 488 Caeneus Minerals Ltd, in the matter of Caeneus Minerals Ltd [2018] FCA 560 Clancy Exploration Limited, in the matter of Clancy Exploration Limited [2018] FCA 569 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACSR 157 Gangemi v Osborne [2009] VSCA 297 In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458 Kimberley College Ltd v Davis, in the matter of Kimberley College Ltd [2018] FCA 1102 Lock, in the matter of Cedenco JV Australia Pty Ltd (in liq) (No 2) [2019] FCA 93 Re Compaction Systems Pty Ltd & The Companies Act [1976] 2 NSWLR 477 Re Golden Gate Petroleum Ltd (ABN 090 074 785) (2010) 77 ACSR 17 Re G8 Communications Ltd (ACN 009 076 233) (2016) 112 ACSR 22 Re iCandy Interactive Ltd (2018) 125 ACSR 369 Re Jaxsta Ltd; Ex parte Jaxsta Ltd [2018] WASC 390 Re Phylogica Ltd (2004) 52 ACSR 159 Re Solco Ltd (ACN 084 656 691) (2015) 106 ACSR 591 Re Wave Capital Ltd (ACN 006 031 161) (2003) 47 ACSR 418 Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd (No 2) [2018] WASC 357 Sprint Energy Ltd, in the matter of Sprint Energy Ltd [2012] FCA 1354 Weinstock v Beck (2013) 251 CLR 396 5G Networks Limited, in the matter of 5G Networks Limited [2019] FCA 698
Date of hearing:	13 June 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Plaintiff:	Ms C Van Proctor
Solicitor for the Plaintiff:	Clayton Utz

ORDERS

		VID 418 of 2019
IN THE MATTER OF MURRAY RIVER ORGANICS LIMITED ACN 159 039 175
BETWEEN:	MURRAY RIVER ORGANICS LIMITED ACN 159 039 175 Plaintiff

JUDGE:	ANDERSON J
DATE OF ORDER:	13 june 2019

THE COURT ORDERS THAT:

1. Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) the time specified by ASIC Corporations Instrument 2016/785 (ASIC Instrument) for the Plaintiff to lodge a Form 389 – Opt in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations be extended to a date five days from the date of this order.

2. Under s 1322(4)(c) of the Corporations Act 2001 (Cth) the Plaintiff and its current and former directors and officers are relieved from any civil liability in respect of any failure to:

(a) lodge a Form 389 – Opt in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations within four months of the end of the financial year of the Plaintiff for 2017;

(b) have the Plaintiff's financial statements for the financial year ending 2017 and 2018 each later financial year audited before the deadline for that year;

(c) comply with s 319(1) of the Corporations Act 2001 (Cth);

(d) comply with s 314(1) of the Corporations Act 2001 (Cth);

(e) lodge Form 388 Copy of financial statements and reports for 2017 and 2018 with the Australian Securities and Investments Commission; and / or

(f) comply with the notice issued by the Australian Securities and Investments Commission under s 1274(11) of the Corporations Act 2001 (Cth) dated 10 April 2019.

3. The exhibit marked "Confidential Exhibit MJO2" annexed to the affidavit of Matthew John O'Brien dated 23 April 2019 filed in these proceedings ("First O'Brien Affidavit"), being a paginated bundle of correspondence referred to in paragraph 13 of the First O'Brien Affidavit and located at pages 80 to 287 of the First O'Brien Affidavit, be suppressed from public examination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J: Introduction

1 The plaintiff, Murray River Organics Limited (MRO), seeks relief pursuant to ss 1322(4)(c) and (d) of the Corporations Act 2001 (Cth) (Act) for the purpose of obtaining relief from non-compliance with the financial reporting and lodging requirements in ss 314 and 319(1) of the Act.

2 On 13 June 2019, I heard MRO’s application. Ms Van Proctor of counsel appeared on behalf of MRO. The Australian Securities and Investment Commission (ASIC), having previously been provided various materials in relation to MRO’s application, did not appear at the hearing. ASIC neither consented nor opposed the proposed orders sought by MRO.

3 I granted the relief sought by MRO at the hearing and these are my reasons for doing so.

Reporting requirements under the Act

4 Part 2M.3 of the Act (containing ss 292...