[2022] WASC 234  
JURISDICTION  
CITATION  
: SUPREME COURT OF WESTERN AUSTRALIA  
IN CHAMBERS  
: METALICITY LTD -v- NEX METALS EXPLORATIONS LTD  
[2022] WASC 234  
CORAM  
: HILL J  
HEARD  
: 30 JUNE 2022  
: 30 JUNE 2022  
: 22 JULY 2022  
: COR 97 of 2022  
DELIVERED  
PUBLISHED  
FILE NO/S  
BETWEEN  
: METALICITY LTD  
Plaintiff  
AND  
NEX METALS EXPLORATIONS LTD  
Defendant  
Catchwords:  
Corporations - Meetings - General meeting convened by member - Proxies - Whether  
procedure for receipt of proxies specified in notice of general meeting irregular - Whether  
substantial injustice  
Corporations - Meetings - General meeting - Meeting convened by company invalid for  
inadequate notice - Validation by s 1322 unless court declares meeting invalid - Appropriate  
relief to be granted  
Corporations - Meetings - Application under Corporations Act 2001 (Cth) s 249G - Whether  
impracticable to call meeting of the defendant's shareholders  
Page 1  
[2022] WASC 234  
Legislation:  
Corporations Act 2001 (Cth), s 249F, s 249G, s 249HA, s 249R s 250B, s 1322(2), s 1324  
Result:  
Notice of meeting called by plaintiff pursuant to s 249F of the Corporations Act 2001 (Cth)  
declared invalid  
Meeting called by defendant adjourned for 21 days  
Plaintiff's originating process dismissed  
Category: B  
Representation:  
Counsel:  
Plaintiff : P E Cahill SC & C C Spencer  
Defendant : S Penglis SC  
Solicitors:  
Plaintiff : Tottle Partners  
Defendant : Lavan  
Cases referred to in decision:  
Beck v Tuckey Pty Ltd [2004] NSWSC 357; (2004) 49 ACSR 555  
Bisan Ltd v Cellante [2002] VSC 430; (2002) 173 FLR 310  
Carpathian Resources Ltd v Highmoor Business Corporation [2010] FCA 1294  
CellOS Software Ltd v Wong [2017] FCA 95; (2017) 118 ACSR 501  
Central Exchange Ltd v Rivkin Financial Services Ltd [2004] FCA 1546; (2004) 213 ALR  
771  
Northwest Capital Management v Westate Capital Ltd [2012] WASC 121; (2012) 264 FLR  
424  
Re Allied Resource Partners Pty Ltd [2017] FCA 923; (2017) 122 ACSR 345  
Re Compactions Systems Pty Ltd [1976] 2 NSWLR 477  
Re Golden West Resources Ltd [2008] FCA 1362; (2008) 170 FCR 409  
Re Opera Photographic Ltd [1989] 1 WLR 634  
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [2019] WASC 322  
Wun v CellOS Software Ltd [2018] FCA 1947  
Page 2  
[2022] WASC 234  
HILL J  
HILL J  
:
1
Each of the plaintiff and defendant are public companies, listed on  
the Australian Securities Exchange (ASX). The plaintiff seeks orders  
pursuant to s 249G of the Corporations Act 2001 (Cth) (Act) for the  
court to order that a meeting of the defendant's shareholders be called to  
consider resolutions to remove the existing directors of the defendant  
and replace them with directors nominated by the plaintiff. The  
plaintiff also seeks ancillary orders, pursuant to s 1319 of the Act, in  
relation to the conduct of the meeting.  
2
The background to this application arises out of the plaintiff's  
concerns in relation to the voting on similar resolutions at the  
defendant's annual general meeting. The plaintiff says that its concerns  
can only be addressed by a party other than the defendant (including its  
share registry) having the conduct of any meeting which will consider  
these resolutions.  
3
In this case, whether the court will exercise its discretion to order a  
meeting under s 249G of the Act depends, to a significant degree, on  
the validity of two separate notices of meetings of the defendant's  
shareholders which are convened for 4 July 2022. Both meetings seek  
to have the same resolutions considered and voted on by shareholders.  
These resolutions are identical to the resolutions the plaintiff seeks to  
be the subject of any meeting ordered by the court. The plaintiff  
accepts that the question as to whether the court should exercise its  
discretion to make any order under s 249G of the Act depends on the  
validity of the notices that have been issued by the plaintiff and  
defendant.1 If these notices are valid, the plaintiff does not press for  
orders under s 249G of the Act. However, if these notices are declared  
invalid, the plaintiff contends orders should be made by the court to call  
a meeting of shareholders of the defendant.  
4
The first notice of meeting that was issued is a meeting called by  
the plaintiff pursuant to s 249F of the Act (s 249F Notice). This notice,  
which is dated 24 March 2022, called a meeting to be held at 9.00 am  
on 4 May 2022, at the offices of the plaintiff's solicitors. The directors  
of the defendant have resolved on two separate occasions to postpone  
this meeting. It is now scheduled to be held at 9.00 am on 4 July 2022,  
at the offices of the plaintiff's solicitors.  
1 ts 58 - 59.  
Page 3  
[2022] WASC 234  
HILL J  
5
The second notice of meeting, dated 3 June 2022, is a meeting  
called by the defendant for 8.00 am on 4 July 2022 at 195 Adelaide  
Terrace, Perth (Second Notice).  
6
Given the urgency of the matter, at the conclusion of the hearing, I  
gave brief reasons for the orders I made declaring the s 249F Notice to  
be invalid and adjourning the meeting convened by the Second Notice  
for three weeks until 25 July 2022. At the time, I indicated that more  
fulsome reasons would be provided in due course. These are those  
reasons.  
Evidence on the application  
In support of its application, the plaintiff relied on ten affidavits:  
7
(a)  
(b)  
(c)  
three affidavits of Justin Charles Barton, the managing director  
of the plaintiff, filed 3 June 2022 (First Barton affidavit),2  
7 June 2022 (Second Barton affidavit), and 15 June 2022 (Third  
Barton affidavit);  
an affidavit of Michael Phillip Bowen filed 7 June 2022.  
Mr Bowen is a legal practitioner and partner of Thomson Geer  
who the plaintiff proposes as the independent chair if a meeting  
is ordered to be called by the court;  
an affidavit of Martin Roy Jones filed 8 June 2022. Mr Jones is  
the general manager, corporate governance of Boardroom Pty  
Ltd, who the plaintiff proposes as the independent meeting  
services provider if a meeting is ordered to be called by the  
court;  
(d)  
(e)  
[4] and attachment 'ELT3' of the affidavit of Evan Leslie  
Taylor, a solicitor employed by the plaintiff's solicitors, filed  
8 June 2022,3 and Mr Taylor's supplementary affidavit filed  
28 June 2022;  
an affidavit of Christian Omar Hernandez, the state manager of  
the client relationship group of Link Market Services, who was  
appointed by the plaintiff to collate proxy forms for the s 249F  
meeting, filed 15 June 2022; and  
2 Save for the second sentence of [47]: ts 30.  
3 ts 31.  
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[2022] WASC 234  
HILL J  
(f)  
two affidavits of Audrey Pieterse, a solicitor employed by the  
plaintiff's solicitors, filed 24 June 2022 and 28 June 2022.  
8
The defendant relied on four affidavits being:  
(a)  
three affidavits of Kenneth Malcolme Allen, the managing  
director of the defendant, filed 13 June 2022 (First Allen  
affidavit), a supplementary affidavit filed 28 June 2022 (Second  
Allen affidavit) and a further supplementary affidavit filed  
28 June 2022 (Third Allen affidavit); and  
(b)  
an affidavit of Saju Shamsudin Lailabeevi, the defendant's  
account manager at Advanced Share Registry Ltd, filed 22 June  
2022.  
9
Both parties filed comprehensive written submissions prior to the  
hearing. These submissions, together with the oral submissions of  
senior counsel for each of the parties, were of significant assistance in  
determining the matter on an urgent basis, as well as preparing these  
written reasons.  
Procedural background  
10  
On 3 June 2022, the plaintiff filed an originating process seeking  
orders pursuant to s 249G of the Act for the court to order a meeting of  
the defendant's shareholders. A certificate of urgency accompanied the  
originating process.  
11  
12  
The originating process was listed for an initial directions hearing  
on 9 June 2022. At that time, directions were made to program the  
matter through to a final hearing on 21 June 2022.  
On 13 June 2022, the defendant filed an application for  
declaratory and injunctive relief in respect of the s 249F Notice.  
Specifically, the defendant sought orders for the s 249F Notice to be  
declared invalid and the plaintiff to be restrained from holding a  
meeting of members of the defendant at 9.00 am on 4 July 2022.  
13  
On 14 June 2022, the plaintiff sought leave of the court to issue a  
subpoena to Advanced Share Registry Ltd (the share registry of the  
defendant) pursuant to O 36B r 2(2B)(c)(ii) of the Rules of the Supreme  
Court 1971 (WA) (Rules). The draft subpoena required leave because  
it was returnable on the day prior to trial in a proceeding where a  
defence was not required to be filed. The draft subpoena sought five  
categories of documents, being: all proxy forms received for the annual  
Page 5  
[2022] WASC 234  
HILL J  
general meeting; all records of the date and time of receipt of the proxy  
forms; any documents evidencing proxies that were submitted online  
including information regarding the shareholder's name, the date and  
time of receipt of the online proxy and the internet protocol address  
from which the proxy was submitted; any documents evidencing votes  
submitted online during the annual general meeting; and any documents  
relating to that date, time and method of distribution of the Second  
Notice.  
14  
The application was opposed by the defendant on the basis that:4  
(a)  
(b)  
(c)  
the originating process did not seek any orders or declarations  
in respect of the validity of the resolutions at the annual general  
meeting;  
at its highest, the plaintiff's evidence was nothing more than an  
unsubstantiated 'concern' in respect of the voting at the annual  
general meeting; and  
the defendant expressly rejected any allegation of fraud,  
interference, or improper conduct with respect to the annual  
general meeting.  
15  
Under the Rules, for the court to grant leave to issue a subpoena  
returnable on a day prior to trial, the court must be satisfied there are  
exceptional circumstances. In considering what are 'exceptional  
circumstances' for the purposes of O 36B r 2(2B), Le Miere J in Sandy  
v Yindjibarndi Aboriginal Corporation RNTBC stated that:5  
The words 'exceptional circumstances' have their ordinary meaning.  
'Exceptional' means 'out of the ordinary' or 'unusual', rather than  
'unique'. The party requesting the issue of a subpoena should be able to  
demonstrate the precise issues in respect of which the documents are  
required.  
16  
The plaintiff contended the documents sought in the subpoena  
were relevant to the issues raised in the originating process because its  
concerns in relation to the conduct of the annual general meeting is a  
basis upon which it contends the court should order the convening of a  
meeting under s 249G of the Act. The plaintiff's evidence was that  
between 72% and 75% of the defendant's shareholders voted at the  
most recent annual general meeting and that 110 million more votes  
4 Email from Lavan to the Associate to Hill J dated 14 June 2022.  
5 Sandy v Yindjibarndi Aboriginal Corporation RNTBC [2019] WASC 322 [4].  
Page 6  
[2022] WASC 234  
HILL J  
were cast at this meeting compared to the previous annual general  
meetings of the defendant.  
17  
At the time, I accepted that while there may be explanations for  
the significant increase in voting, none had been proffered by the  
respondent. For this reason, I did not accept that the plaintiff's evidence  
was merely an unsubstantiated 'concern'. I considered that the  
documents sought by the plaintiff were necessary to fairly prepare and  
present its case at the hearing and granted leave to the plaintiff to issue  
the subpoena, subject to the removal of the final category which  
concerned the Second Notice. This was because the originating process  
did not, at that stage, raise any issue in respect of the Second Notice  
and accordingly this category was not relevant to the issues in the  
proceeding. The subpoena required production of the documents by  
9.00 am on 20 June 2022.  
18  
On 15 June 2022, the plaintiff filed an amended originating  
process. The amendments concerned the Second Notice and sought  
orders declaring the Second Notice to be invalid and restraining the  
defendant from holding a meeting of its members at 8.00 am on 4 July  
2022.  
19  
On the evening of 15 June 2022, the solicitors for the defendant  
requested an urgent directions hearing arising out of the filing of the  
amended originating process. The matter was relisted for directions on  
16 June 2022. At that hearing, orders were made vacating the hearing  
on 21 June 2022 and reprogramming the matter through to a final  
hearing on 30 June 2022.  
20  
On 20 June 2022, orders were made for the plaintiff to have leave  
to access, uplift and copy the documents produced on subpoena by  
Advanced Share Registry Ltd. Later that day, the plaintiff sought  
leave to issue three further subpoenas. Each of these subpoenas were  
addressed to internet service providers to enable the plaintiff to  
ascertain the identity of the users who had lodged multiple online  
proxies for the defendant's annual general meeting. The application  
was not opposed by the defendant. On 21 June 2022, orders were made  
granting leave for these subpoenas to be issued returnable on 24 June  
2022.  
21  
On 28 June 2022, the solicitors for the plaintiff requested the  
matter be listed for directions on an urgent basis. The matter was  
relisted that morning and orders were made requiring the defendant to  
Page 7  
[2022] WASC 234  
HILL J  
produce for inspection certain documents that were referred to in the  
First Allen affidavit. Later that day, the defendant filed the Third Allen  
affidavit which addressed the matters that were the subject of these  
orders.  
Factual background  
22  
The plaintiff and its wholly-owned subsidiary Kym Mining Pty  
Ltd (Kym Mining) and the defendant are parties to a joint venture  
agreement dated May 2019.6  
23  
At present, the defendant has 267,014,768 shares on issue and  
approximately 760 shareholders. The defendant has three directors,  
being Mr Allen, Mr Thomas Francis Percy QC and Mr Hock Hoo  
Chua.  
24  
In September 2021, the plaintiff made an off-market takeover offer  
for the shares in the defendant. There have been a number of disputes  
in relation to this takeover and numerous applications have been made  
to the Takeovers Panel. As at 2 June 2022 (the day prior to the  
commencement of the proceedings), the plaintiff and Kym Mining  
owned approximately 34.21% of the issued share capital of the  
defendant.7  
25  
On 17 February 2022, the plaintiff issued a notice to the defendant  
pursuant to s 203D of the Act giving notice that it intended to call and  
arrange a meeting pursuant to s 249F of the Act to remove the existing  
directors of the defendant and to appoint Mr Alexander James Neuling,  
Mr Barton and Mr Kevin David O'Sullivan as directors of the  
defendant.8  
26  
On 3 March 2022, the defendant issued a notice of meeting for its  
annual general meeting to be held at 2.00 pm on 31 March 2022.9 The  
resolutions to be considered at this meeting included the re-election of  
Mr Percy QC and the appointment of the additional directors nominated  
by the plaintiff in its s 203D notice.  
27  
The notice of meeting provided that proxies for the meeting could  
be lodged online via the share registry of the defendant, by mail, by  
facsimile, by email or in person. In order to lodge an online proxy for  
6 First Barton affidavit [9].  
7 First Barton affidavit [8].  
8 First Barton affidavit 'JB18'.  
9 First Barton affidavit 'JB10'.  
Page 8  
[2022] WASC 234  
HILL J  
the meeting, the following information was required: the holder  
identification number of the shareholder, the company name or code,  
the country and the postcode of the shareholder as recorded in the  
defendant's share register.10 Where an online proxy is lodged, the  
information that is recorded by the defendant's share registry includes  
the name of the shareholder, the name or title of the proxy holder,  
whether the proxy is directed or undirected, the date and time of receipt  
of the online proxy, and the internet protocol (IP) address from which  
the proxy emanated.11  
28  
29  
At the time of the annual general meeting, the plaintiff and Kym  
Mining owned 88,500,612 shares in the defendant or approximately  
33.14% of the issued share capital of the defendant.  
At the annual general meeting, Mr Percy QC was re-elected and  
the resolutions to appoint Mr Neuling, Mr Barton, and Mr O'Sullivan  
were not carried. Following the annual general meeting, the defendant  
lodged an announcement with the ASX. This announcement disclosed  
that:12  
(a)  
the re-election of Mr Percy QC was passed on a poll.  
109,739,697 votes were voted in favour of the resolution and  
92,551,370 votes against. That is, the resolution was carried by  
17,188,327 votes; and  
(b)  
202,291,067 shares were voted in relation to each of resolutions  
4, 5 and 6 which equated to 75.76% of the total number of  
issued shares in the defendant. 88,530,612 shares were voted in  
favour of these resolutions and 113,592,794 shares against these  
resolutions. That is, the resolutions failed by 25,062,182 votes.  
30  
31  
The turnout at the annual general meeting for the year ending  
30 June 2021 was significantly greater than at the annual general  
meeting for the year ending 30 June 2020 (59,578,617 shares voted)  
and the year ending 30 June 2019 (81,350,727 shares voted).13  
On 24 March 2022, the plaintiff issued the s 249F Notice to the  
defendant's shareholders.14  
10 First Barton affidavit [17], [21].  
11 First Barton affidavit [33].  
12 First Barton affidavit [31], 'JB13'.  
13 First Barton affidavit [32].  
14 First Barton affidavit 'JB20'.  
Page 9  
[2022] WASC 234  
HILL J  
32  
On 1 April 2022, the solicitors for the plaintiff wrote to the  
defendant's then solicitors requesting production of a number of  
documents including details of the IP address from which each of the  
online proxies was lodged. On 4 April 2022, the defendant by its then  
solicitors responded to this letter and 'vehemently' denied there had  
been any interference with the voting process or that there was any  
improper conduct in the conduct of voting at the annual general  
meeting.15  
33  
On 8 April 2022, following conferral between the solicitors, the  
defendant's then solicitor informed the plaintiff's solicitors that they  
were 'waiting on something from the share registry that may assuage  
your client's concerns'.16 No further information or documents were  
produced by the defendant prior to the commencement of these  
proceedings.17  
34  
Following the issue of the s 249F Notice, correspondence passed  
between the parties' solicitors in relation to its validity. The initial  
letter from the defendant's solicitors contended that the s 249F Notice  
was invalid on several grounds. First, it reduced the time frame within  
which shareholders could lodge a proxy for the meeting, contrary to  
s 250B(1) of the Act. Second, the s 249F Notice was misleading in  
failing to inform shareholders they could send their proxy forms  
directly to the defendant up until 9.00 am on 2 May 2022. Third, the  
defendant contended that in failing to include or permit virtual  
attendance or participation in the meeting, the s 249F Notice  
contravened s 249F(2) and s 249R of the Act. In addition, the  
defendant raised concerns about the appointment of Link Market  
Services to receive proxy forms for the meeting as well as the validity  
of resolution 7, which sought to remove any director appointed to fulfil  
a casual vacancy from 17 February 2022 until the commencement of  
the meeting.18  
35  
36  
On 26 April 2022, the plaintiff's solicitors conceded that  
resolution 7 should not be put to the meeting but otherwise rejected the  
contention that the s 249F Notice was invalid.19  
On 29 April 2022, the directors of the defendant resolved to  
postpone the s 249F meeting until 9.00 am on 25 May 2022. This was  
15 First Barton affidavit 'JB15'.  
16 First Barton affidavit 'JB16'.  
17 First Barton affidavit [36].  
18 First Barton affidavit 'JB21'.  
19 First Barton affidavit 'JB22'.  
Page 10  
[2022] WASC 234  
HILL J  
the subject of both an announcement to the ASX20 and advertisement in  
the Australian Financial Review.21 On 23 May 2022, the directors of  
the defendant again resolved to postpone the s 249F meeting until  
9.00 am on 4 July 2022. This was announced to the ASX on 23 May  
2022 and advertised in the Australian Financial Review on 24 May  
2022.22  
37  
Following the further postponement of the s 249F meeting, the  
solicitors for the parties exchanged correspondence to attempt to reach  
agreement as to the basis on which a meeting of the defendant's  
shareholders would be held to consider the resolutions.23 Regrettably,  
the parties were unable to reach agreement.  
38  
On 3 June 2022, the plaintiff commenced these proceedings. At  
that time:  
(a)  
(b)  
the defendant had not issued the Second Notice; and  
the defendant had not commenced any proceedings to challenge  
the validity of the s 249F Notice.  
39  
On the afternoon of 3 June 2022, the defendant announced to the  
ASX that it had convened a meeting of its shareholders to be held at  
8.00 am on 4 July 2022.24 At that time, Mr Allen believed that if the  
notice and proxy form was provided to Advanced Share Registry Ltd  
on 3 June 2022, the Second Notice and proxy form would be dispatched  
to shareholders that same day.25  
40  
In relation to the dispatch of the Second Notice, the evidence  
before the court is that:  
(a)  
on 3 June 2022, the defendant's share register, Advanced Share  
Registry Ltd, received a request from the defendant to dispatch  
the Second Notice to the defendant's shareholders together with  
an accompanying proxy form;26  
20 First Barton affidavit 'JB23'.  
21 First Barton affidavit 'JB24'.  
22 First Barton affidavit 'JB25'.  
23 First Barton affidavit 'JB26' - 'JB31'.  
24 Second Barton affidavit 'JB36'.  
25 Second Allen affidavit [14].  
26 Affidavit of Saju Shamsudin Lailabeevi filed 22 June 2022 [7].  
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[2022] WASC 234  
HILL J  
(b)  
(c)  
on 4 June 2022, the defendant confirmed its instructions to  
dispatch the Second Notice and proxy form;27  
between 7 June 2022 and 8 June 2022, hard copies of the  
Second Notice and personalised proxy forms were printed for  
dispatch to the defendant's shareholders by post;28  
(d)  
(e)  
on 8 June 2022, hard copies of the Second Notice and  
personalised proxy forms were lodged with Australia Post for  
postage to 653 Australian shareholders and 17 international  
shareholders;29  
on 8 June 2022, the Second Notice and personalised proxy  
forms were sent by email to shareholders who have elected to  
receive communications electronically.30  
41  
Ms Cinzia Donald, a partner of Lavan, the defendant's solicitors,  
has been engaged to attend the general meeting called by the defendant  
and to provide advice in relation to the conduct of the meeting.31  
42  
43  
Mr Barton's evidence is that the plaintiff did not receive the  
Second Notice or the proxy form for this meeting until 13 June 2022.  
On 13 June 2022, the First Allen affidavit was filed in opposition  
to the plaintiff's application. In this affidavit, Mr Allen deposed that he:  
did not lodge a proxy for, or vote electronically at, [the defendant's]  
annual general meeting held on 31 May 2022 (AGM) with respect to a  
shareholder other than myself or entities within my control or whose  
authority I held to lodge a proxy on their behalf.  
44  
On 28 June 2022, the Third Allen affidavit was filed which  
addressed the matters that were the subject of my orders of 28 June  
2022. Mr Allen's evidence was that between 15 March 2022 and  
29 March 2022, he lodged votes on behalf of 26 shareholders in relation  
to the defendant's annual general meeting. Mr Allen deposed that:  
At the time I lodged the online votes, I understood that I held the  
authority of the relevant shareholder to do so. I have explained the  
circumstances in which I received such authority below.  
27 Affidavit of Saju Shamsudin Lailabeevi filed 22 June 2022 [9].  
28 Affidavit of Saju Shamsudin Lailabeevi filed 22 June 2022 [10] - [12].  
29 Affidavit of Saju Shamsudin Lailabeevi filed 22 June 2022 [14] - [17].  
30 Affidavit of Saju Shamsudin Lailabeevi filed 22 June 2022 [19] - [21].  
31 First Allen affidavit [12].  
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HILL J  
45  
Between 15 and 29 March 2022, Mr Allen had similar  
conversations with 21 of the defendant's shareholders to the following  
effect. Mr Allen noted that the defendant was the subject of a hostile  
takeover bid by the plaintiff and that the plaintiff was trying to remove  
the current board of directors of the defendant and appoint three new  
directors. At the annual general meeting the resolutions to be voted on  
included the adoption of the remuneration report, the re-election of  
Mr Percy QC and the appointment of three new directors proposed by  
the plaintiff. Mr Allen expressed the opinion to each of the  
shareholders that he considered it was inappropriate in the middle of a  
takeover bid for the plaintiff to attempt to circumvent the takeover  
process. His evidence is that:32  
The member said to me words to the effect that they were happy for me  
to lodge online votes on their behalf in a manner I saw fit.  
46  
Mr Allen then gives evidence of his conversations or text message  
exchanges with each of these shareholders. In relation to a number of  
these shareholders, the authorisation on which Mr Allen relies was not  
given by the shareholder (or a director of the shareholder) but by others  
(such as a stockbroker, family member, or friend).33  
Legal requirements for the convening of a valid meeting of members  
47  
Before turning to consider the validity of each of the notices of  
meeting, it is necessary to consider the requirements of the Act and the  
defendant's constitution (Constitution) in relation to meetings of the  
defendant's shareholders.  
Relevant provisions of the Corporations Act  
48  
Part 2G.2 of the Act governs meetings of members of companies.  
Division 2 of pt 2G.2 sets out a number of ways in which meetings of  
shareholders can be called. Relevantly, for the purposes of this  
application, s 249F provides that:  
(1)  
Members with at least 5% of the votes that may be cast at a  
general meeting of the company may call, and arrange to hold, a  
general meeting. The members calling the meeting must pay the  
expenses of calling and holding the general meeting.  
32 Third Allen affidavit [8.2].  
33 Third Allen affidavit [16.5] - [16.6], [17], [32], [37] - [41], [49] - [50], [58] - [59], [68] - [70], [71], [74],  
[75].  
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[2022] WASC 234  
HILL J  
49  
Section 249F(2) requires the meeting to be called in the same way,  
so far as is possible, in which general meetings of the company may be  
called.  
50  
Division 3 of pt 2G.2 of the Act sets out the requirements for the  
calling of meetings of members. Section 249HA(1) of the Act, which  
only applies to listed companies, provides that:  
[A]t least 28 days notice must be given of a meeting of a company's  
members.  
51  
52  
Division 5 of pt 2G.2 governs the holding of the meetings of  
members. Section 249R of the Act requires a meeting of shareholders  
to be held at a reasonable time and location or locations.  
Division 6 of pt 2G.2 governs the appointment of proxies and  
body corporate representatives. Pursuant to s 250A(1) of the Act, an  
appointment of a proxy is valid if it is signed by the member of the  
company making the appointment and contains the following  
information:  
(a)  
(b)  
(c)  
(d)  
the member's name and address;  
the company's name;  
the proxy's name or the name of the office held by the proxy;  
the meetings at which the appointment may be used.  
53  
Section 250B of the Act sets out the requirements for the receipt of  
proxies and provides that:  
(1)  
For an appointment of a proxy for a meeting of a company's  
members to be effective, the following documents must be  
received by the company at least 48 hours before the meeting:  
(a) the proxy's appointment;  
(b) if the appointment is signed, or otherwise authenticated in  
a manner prescribed by the regulations made for the  
purposes of subsection 250A(1), by the appointer's  
attorney - the authority under which the appointment was  
signed or authenticated or a certified copy of the authority.  
(2)  
If a meeting of a company's members has been adjourned, an  
appointment and any authority received by the company at least  
48 hours before the resumption of the meeting are effective for  
the resumed part of the meeting.  
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(3)  
A company receives a document referred to in subsection (1):  
(a) if the document is given by means of an electronic  
communication in accordance with section 253RA - when  
the document is received by the company;  
(b) otherwise, when the document is received at:  
(c) the company's registered office;  
(d) a place specified for the purpose in the notice of meeting.  
(5)  
The company's constitution (if any) or the notice of meeting  
may reduce the period of 48 hours referred to in subsection (1)  
or (2). [emphasis added]  
54  
Section 250BA(1) of the Act, which only applies to listed  
companies, requires that a notice of meeting must specify at least one of  
the following:  
(a)  
a place for the purposes of receipt of proxy appointments and  
proxy appointment authorities;  
(b)  
sufficient information to allow members to comply with section  
250B by means of an electronic communication.  
The Constitution34  
Clauses 14 and 15 of the Constitution govern meetings of  
55  
members and voting by members. Clause 14.1(d) requires notices of  
meeting to be given in writing in the manner provided in the  
Constitution and in accordance with the Act and the Listing Rules.  
Clause 14.1(e) requires every notice to specify a place and a fax  
number for the purpose of receipt of proxy appointments and 'may' also  
specify an electronic address for the same purpose. Notices of meeting  
are also required to be accompanied by a form of proxy which satisfies  
the requirements of the Listing Rules and the Act.  
56  
Clause 15.3(a) of the Constitution provides that the instrument  
appointing the proxy and the power of attorney, if any, must be  
received by or on behalf of the company at such place, fax number or  
electronic address notified in the notice of meeting not less than  
48 hours before the meeting or adjourned meeting at which the person  
named in the instrument proposes to vote (emphasis added).  
34 Affidavit of Evan Leslie Taylor filed 8 June 2022, 'ELT3'.  
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57  
Clause 27(d) of the Constitution deems that a notice sent by post is  
received the day after the date of its posting.  
Circumstances in which a court will order a meeting under s 249G of the  
Act  
58  
59  
60  
Section 249G of the Act gives the court the power, on the  
application of any director or any member entitled to vote at the  
meeting, to order a meeting of the company's members to be called if it  
is 'impracticable' to call the meeting in any other way.  
There are two components to this section. First, the applicant  
must show that it is 'impracticable' to call the meeting in any other way.  
Second, if this is established, the court has a discretion whether or not  
to order a meeting to be called.  
Impractability extends not only to the calling of the meeting but  
also the conduct of the meeting.35 The question as to whether it is  
impracticable to call or conduct a meeting is a factual question which  
requires the court to look at the circumstances of the particular case and  
consider whether, as a practical matter, the meeting of the company can  
be conducted.36  
61  
Courts have exercised their discretion to order the calling and  
conduct of a meeting in circumstances where shareholders refuse to  
attend a meeting and so there is or will be no quorum for the meeting,37  
and where there is a deadlock between directors.38  
Notices of Meeting  
I turn now to consider the validity of the two notices of meeting  
62  
that have been issued to the defendant's shareholders. I propose to  
address them in the order in which they were convened; namely, the  
s 249F Notice and then, the Second Notice.  
Validity of the s 249F Notice  
63  
The defendant raises several concerns in respect of the s 249F  
Notice.  
64  
The primary issue the defendant identified is in relation to the  
information in the s 249F Notice regarding the process for the lodgment  
35 Beck v Tuckey Pty Ltd [2004] NSWSC 357; (2004) 49 ACSR 555 [45].  
36 Beck v Tuckey Pty Ltd [40].  
37 Re Opera Photographic Ltd [1989] 1 WLR 634.  
38 Northwest Capital Management v Westate Capital Ltd [2012] WASC 121; (2012) 264 FLR 424 [171].  
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of proxies. The defendant contends that the s 249F Notice contravenes  
s 250B of the Act, is misleading and does not comply with the  
mandatory requirements of the Constitution in failing to provide a  
facsimile number for the lodgement of proxies.  
65  
The plaintiff submitted that the objections raised by the defendant  
were 'hypothetical', particularly given the postponement of the meeting  
on two occasions by the directors of the defendant. Senior counsel for  
the plaintiff emphasised that the proxy form expressly stated that the  
proxies had to be received by the company by 9.00 am on 2 May 2022  
and that they recommended proxy forms be returned to Link Market  
Services although this was not compulsory. Senior counsel for the  
plaintiff drew attention to the fact that no evidence had been adduced  
by the defendant that any shareholders were in fact misled by the  
information in the s 249F Notice or proxy form.  
66  
Relevantly, the s 249F Notice states under the heading 'voting by  
proxy':39  
To vote by proxy, please complete and sign the enclosed Proxy Form  
and return by the time and in accordance with the instructions set out on  
the Proxy Form.  
67  
It then states on the following page under the heading  
'Appointment of Link Market Services as Proxy Collector':40  
In order for a proxy appointment to be effective, the relevant Proxy  
Form must be completed, signed and received by the Company as per  
the Corporations Act by no later than 9:00 am (WST) on Monday,  
2 May 2022.  
68  
Under the same heading, the following paragraphs are printed in  
bold:41  
If you wish to appoint a proxy, the Convening Shareholder recommends  
that you return your completed and signed Proxy Form to Link in  
accordance with the instructions on the Proxy Form.  
Please note that if you wish to return your Proxy Form to Link, in order  
for your appointment of proxy to be effective, Link will need to forward  
your Proxy Form to the Company so that it is received by the Company  
by no later than 9:00 am (WST) on Monday, 2 May 2022. In order for  
Link to do so, please complete, sign and return your Proxy Form to  
39 First Barton affidavit 'JB20' p 248.  
40 First Barton affidavit 'JB20' p 249.  
41 First Barton affidavit 'JB20' p 249.  
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Link in accordance with the details appearing on the Proxy Form, as  
soon as possible, and in any event no later than 9:00 am (WST) on  
Tuesday, 26 April 2022. [emphasis added]  
69  
The proxy form - which is annexed to the notice of meeting -42  
includes directions to shareholders as to how to lodge their vote. These  
include by mail (which is care of Link Market Services) or by hand  
(which is the physical address of Link Market Services). The form also  
contains a telephone number for enquiries which is the phone number  
of Link Market Services.  
70  
The proxy form sets out the steps for the lodgement of a valid  
proxy being the appointment of a proxy, the voting directions given to  
the proxy, and the signature of the shareholder. Relevantly, step 2  
states in bold that:43  
Proxies will only be valid and accepted by the Company if they are  
signed and received no later than 48 hours before the Meeting.  
[emphasis added].  
71  
On the second page of the proxy form, details are provided as to  
how to complete and lodge the proxy form. In relation to the  
lodgement of the proxy form, it includes the notation in bold that:44  
Please return your proxy voting instruction to Link Market Services by  
9:00 am (WST) on Tuesday, 26 April 2022. [emphasis added]  
72  
The form states that to be valid, Link Market Services will need to  
receive and forward proxy forms to the defendant by 9.00 am (WST) on  
Monday, 2 May 2022. The form repeats the addresses for delivery by  
post and by hand. Neither of these addresses are the contact details of  
the defendant, but are of Link Market Services.  
73  
The evidence before the court is and I find that Link Market  
Services received 40 proxy forms from shareholders of the defendant  
from the date the s 249F Notice was issued until the morning of 2 May  
2022. All of these forms were forwarded by email to the defendant,  
copied to Mr Allen, and sent separately by email to Advanced Share  
Registry Ltd.45 Since 2 May 2022, a further two proxy forms have been  
received. Mr Hernandez has deposed he will forward these in a similar  
42 First Barton affidavit 'JB20' p 259 - 260.  
43 First Barton affidavit 'JB20' p 259.  
44 First Barton affidavit 'JB20' p 260.  
45 Affidavit of Christian Omar Hernandez filed 15 June 2022 [5] - [8].  
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fashion prior to the date of the postponed meeting together with any  
additional proxy forms that are received.46  
74  
Section 250B(1) of the Act does not prevent proxy forms being  
handled by a third party prior to them being received by the company.47  
However, notwithstanding this, it is my view that there are three defects  
with the s 249F Notice and the attached proxy.  
75  
First, while I accept the s 249F Notice indicates that in order for it  
to be effective it must be signed and received by the company by no  
later than 9.00 am on 2 May 2022 (ahead of what was supposed to be a  
meeting on 4 May 2022) and that the plaintiff only recommends that  
shareholders return their completed proxy form to Link Market  
Services, neither the proxy form nor the s 249F Notice contain contact  
details of the defendant as an alternative means by which they can  
return their completed proxy. In my view, in failing to include the  
address of the company, which as senior counsel for the defendant  
submits is a requirement of s 250BA of the Act, I consider the notice is  
defective.  
76  
Second, as set out above, the s 249F Notice states that proxy forms  
are to be lodged 'in any event no later than 9.00 am (WST) on Tuesday,  
26 April 2022' so that the forms can be received by the defendant by no  
later than 9.00 am on 2 May 2022. In my view, the language used by  
the plaintiff, particularly the words 'by no later than', suggests this is a  
requirement that must be complied with in order for the proxy to be  
valid. In doing so, I consider the plaintiff has effectively extended the  
time referred to in s 250B(1) of the Act by a further six days and  
represented to shareholders that they have only a short time to exercise  
their right to vote.  
77  
Third, the proxy failed to include details of a facsimile number,  
which is a mandatory requirement of the defendant's Constitution. No  
alternative means of how a shareholder may electronically provide their  
proxy is identified. I consider that, by failing to identify a means by  
which a shareholder can attend to the lodgement of a proxy within a  
short period of time prior to the period referred to in s 250B(1) of the  
46 Affidavit of Christian Omar Hernandez filed 15 June 2022 [13].  
47 Carpathian Resources Ltd v Highmoor Business Corporation [2010] FCA 1294; Northwest Capital  
Management v Westate Capital Ltd [2012] WASC 121; (2012) 264 FLR 424; CellOS Software Ltd v Wong  
[2017] FCA 95; (2017) 118 ACSR 501; Wun v CellOS Software Ltd [2018] FCA 1947; cf Bisan Ltd v  
Cellante [2002] VSC 430; (2002) 173 FLR 310 and Re Golden West Resources Ltd [2008] FCA 1362;  
(2008) 170 FCR 409.  
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Act, shareholders may believe the only way they can exercise their  
right to vote at the meeting is by personal attendance at the meeting.  
78  
In my view, the combination of these matters are defects which  
could lead shareholders to be misinformed of the requirements relating  
to the lodgment of proxies for the meeting, particularly in relation to the  
absence of any information regarding the lodgment of proxies by  
facsimile as required by the Constitution. While these defects may  
have been able to be remedied by the plaintiff by further notice to  
shareholders, no attempt was made to do so. In these circumstances, I  
consider that these defects are likely to cause substantial injustice to  
shareholders that cannot be remedied by any order of the court other  
than by declaring the notice of meeting to be invalid.  
Validity of Second Notice  
79  
On the evidence before me, I find that the Second Notice was  
dispatched:  
(a)  
on 8 June 2022 by email to shareholders who elected to receive  
information electronically;  
(b)  
on 8 June 2022 to 653 shareholders who elected to receive  
communications by post. This is the significant majority of the  
shareholders of the defendant. By reason of cl 27(d) of the  
Constitution, these shareholders are deemed to have received  
the notice on 9 June 2022.  
80  
The defendant conceded that it had not complied with the notice  
provisions in the Act.48 However, senior counsel for the defendant  
submitted this was a procedural irregularity that, pursuant to s 1322 of  
the Act, did not invalidate the meeting unless the court considered the  
irregularity had caused or may cause substantial injustice that cannot be  
remedied by any order of the court.  
81  
Section 1322 of the Act relevantly provides that:  
(1)  
In this section, unless the contrary intention appears:  
(a)  
a reference to a proceeding under this Act is a reference  
to any proceeding whether a legal proceeding or not;  
and  
48 Defendant's submissions [75].  
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[2022] WASC 234  
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(b)  
a reference to a procedural irregularity includes a  
reference to:  
(i)  
the absence of a quorum at a meeting of a  
corporation, at a meeting of directors or  
creditors of a corporation, at a joint meeting of  
creditors and members of a corporation or at a  
meeting of members of a registered scheme;  
and  
(ii)  
a defect, irregularity or deficiency of notice or  
time.  
(2)  
A proceeding under this Act is not invalidated because of any  
procedural irregularity unless the Court is of the opinion that the  
irregularity has caused or may cause substantial injustice that  
cannot be remedied by any order of the Court and by order  
declares the proceeding to be invalid.  
82  
I accept that the defect in the notice given to shareholders in  
relation to the Second Notice is a procedural irregularity under  
s 1322(1) of the Act. I have carefully considered whether the failure to  
give adequate notice has caused or may cause substantial injustice to  
shareholders. There is no evidence before the court that this defect has  
caused substantial injustice. For that reason, the question for the court  
is whether, in the court's opinion, the irregularity may cause substantial  
injustice that cannot be remedied by any order of the court.  
83  
84  
In this regard, the court is required to consider whether there is  
any real and not merely insubstantial or theoretical prejudice that will  
be suffered by making any order and weigh this against any prejudice  
to the company and other members if an order is not made.49  
In reaching my conclusion, I have taken into account the following  
matters. First, the resolutions which are proposed to be put to members  
at the meeting scheduled for 8.00 am on 4 July 2022 for the removal of  
all existing directors of the defendant and the appointment of directors  
nominated by the plaintiff are very important. Section 249HA of the  
Act uses mandatory terms in requiring at least 28 days' notice of any  
meeting of a listed company to be given. The legislature has made it  
clear by other provisions of the Act that it considers resolutions for the  
removal of directors of public companies to be of particular  
importance.50 This implies a need to ensure that the requirements as to  
49 Re Compactions Systems Pty Ltd [1976] 2 NSWLR 477, 493; Re Allied Resource Partners Pty Ltd [2017]  
FCA 923; (2017) 122 ACSR 345 [32].  
50 Corporations Act 2001 (Cth), s 203D.  
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notice are strictly adhered to when a resolution of such importance is  
being put to members.  
85  
86  
Second, there is no evidence before me that suggests there is any  
particular urgency in the meeting proceeding on 4 July 2022.  
Third, in my view, there is a significant risk that shareholders will  
not have an appropriate opportunity to be informed of the orders I  
propose to make, which meeting or meetings the orders govern and  
consider how this may impact on their vote prior to the time and date  
by which proxies must be lodged in respect of the meeting the subject  
of the Second Notice, which requires proxies to be lodged by 8.00 am  
on 2 July 2022. In this regard, I consider there may be a substantial  
injustice to shareholders in being deprived of the opportunity to vote on  
the resolutions which may have a significant impact on the future  
management and direction of the defendant.  
87  
While I accept the court has a residual discretion under s 1322 of  
the Act to overlook the requirement of notice in an appropriate case, I  
do not consider the present circumstances of this case are sufficiently  
compelling to act in a manner which is contrary to the specific wording  
of s 249HA.  
88  
Given this finding, it is unnecessary for me to consider the  
alternate arguments under s 249R of the Act or to form any concluded  
view on that issue. It is sufficient for me to state that I consider the  
convening of a meeting of shareholders immediately prior to a second  
meeting but at a different place, at which the same resolutions are to be  
considered is unlikely to be considered a reasonable time or location.51  
This is particularly the case where an inference may reasonably be  
drawn that the only apparent reason for the timing of the proposed  
meeting is to ensure that it be held prior to a meeting convened by a  
significant shareholder.  
89  
The remaining issue is whether the defect in notice can be  
remedied by any order of the court, such as the adjournment of the  
meeting, or whether it is necessary to declare the Second Notice invalid  
in its entirety. My preliminary view was that:  
(a)  
there was a real risk that shareholders were likely to be  
confused by the calling of two meetings to be held on the same  
day to consider the same resolutions;  
51 Central Exchange Ltd v Rivkin Financial Services Ltd [2004] FCA 1546; (2004) 213 ALR 771 [67].  
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(b)  
(c)  
this confusion might not be addressed by the declaration I  
propose to make in relation in relation to the s 249F meeting  
and the adjournment of the meeting called by the Second  
Notice; and  
any substantial injustice arising out this confusion might only be  
addressed by declaring the Second Notice also to be invalid.  
90  
However, having giving the matter careful consideration and, in  
particular, taking account of the submissions made by senior counsel  
for the plaintiff, it is my view that, in the particular circumstances of  
this case, the defect in the Second Notice and the substantial injustice I  
have identified can be cured by ordering an adjournment of the meeting  
together with a requirement that shareholders be clearly informed about  
what has occurred and which meeting is proceeding. Had the plaintiff  
not agreed that the defect in the Second Notice could be cured by an  
adjournment and appropriate notice being given to shareholders, I  
would have declared the Second Notice also to be invalid.  
91  
My provisional view was that the adjournment should be for a  
period of 21 days. The primary reasons for this length of adjournment  
were my concerns that there was a reasonable likelihood that  
shareholders would be confused by the receipt of two notices of  
meeting considering the same resolutions, the timing of these meetings  
(being scheduled for 8.00 am and 9.00 am on the same date but at  
different venues) and the late stage at which these orders have been  
made compared to the date of the meetings.  
92  
In my view, in order to address the identified risk of substantial  
injustice, it is necessary for a notice to be given to shareholders,  
dispatched in accordance with the provisions in the Constitution. The  
notice needs to explain to shareholders what has occurred in these  
proceedings and which meeting has been adjourned. It should remind  
shareholders to vote at the adjourned meeting and give them the  
opportunity to lodge proxies and, if necessary, to lodge proxies which  
change their vote.  
Application for court ordered meeting under s 249G of the Act  
93  
In this case, the plaintiff contended there were 'irreconcilable  
differences' between the parties in relation to the convening of a  
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HILL J  
meeting to consider the resolutions proposed by the plaintiff, as well as  
how any meeting of shareholders should be conducted.52  
94  
The evidence before the court was that the plaintiff had not  
utilised the procedure under s 249D of the Act because of concerns the  
directors of the defendant would 'delay and control' the process,  
particularly in light of their concerns as to the conduct of the annual  
general meeting.53 The plaintiff emphasised that it called a meeting  
pursuant to s 249F which has been postponed on two occasions by the  
directors of the defendant and was now challenged by the defendant. It  
contended that the fact that each of the plaintiff and defendant had  
called a meeting of shareholders to consider the same resolutions was  
evidence of the impractability of holding a meeting that was not  
convened by the court. In these circumstances, the plaintiff submitted  
that its proposal that there be an independent share registry engaged to  
collate the proxies and an independent chairperson of the meeting were  
'essential' to the conduct of a meeting that would not lead to further  
disputation between the parties.54 In their written submissions, the  
plaintiff expressed a concern as to the substantial delay in holding any  
meeting of shareholders to consider the resolutions.  
95  
In oral submissions, senior counsel for the plaintiff drew attention  
to Mr Allen's conduct in lodging proxies on behalf of shareholders prior  
to the annual general meeting as set out at [44] - [46] as evidence that it  
was 'impracticable' to hold or conduct a meeting that was not convened  
by the court.  
96  
Senior counsel for the defendant submitted that Mr Allen's  
conduct was 'irrelevant' to the matters before the court as the plaintiff  
does not seek any orders in relation to the conduct of the annual general  
meeting. It was contended that these 'concerns' at their highest do not  
go to the impractability of holding a meeting or support the making of  
orders under s 249G of the Act.  
97  
I do not accept the submission that the conduct of Mr Allen in  
lodging on-line proxies on behalf of numerous shareholders on  
contested resolutions was irrelevant or that this conduct can be  
appropriately characterised as a 'concern'. However, given that no  
orders are sought by the plaintiff in relation to the resolutions at the  
annual general meeting and there is a possibility that Mr Allen's  
52 Plaintiff's submissions [59].  
53 First Barton affidavit [47].  
54 Plaintiff's submissions [65] - [66].  
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conduct may be the subject of complaint or further action, it is not  
appropriate that I make any findings in relation to his conduct. It is  
sufficient for the purposes of these proceedings for me to state that my  
preliminary view is that the Act and the Constitution require proxies to  
be lodged personally by shareholders, unless a corporate representative  
has been appointed or a power of attorney granted.  
98  
That said, there is no evidence before the court that this conduct  
has occurred on previous occasions or that there is a basis on which I  
could draw an inference that this conduct will occur in the future. If  
this was the case, it may well be that I would be satisfied there was an  
evidential basis for a conclusion that it was impracticable to call a  
meeting and that I should exercise my discretion to order the calling  
and conduct of a meeting under s 249G of the Act. However, given the  
fulsome disclosure that has been made by Mr Allen as well as the  
retention of Ms Donald to attend and advise the defendant as to the  
conduct of the general meeting the subject of the Second Notice, I am  
not satisfied at this stage that it is impracticable for a meeting of the  
defendant's shareholders to be called and conducted in the manner  
proposed by the defendant.  
99  
Given that a meeting of shareholders of the defendant will be  
proceeding within the next 21 days to consider resolutions that the  
plaintiff proposes be the subject of any meeting convened under s 249G  
of the Act, I do not consider any orders should be made under that  
section.  
Conclusion  
100  
For the reasons set out above, at the conclusion of the hearing, I  
declared that the s 249F Notice issued by the plaintiff was invalid.  
101  
In addition, because of the inadequacy of notice in relation to the  
Second Notice, I determined that the meeting scheduled for 8.00 am on  
4 July 2022 could not proceed. I ordered that this meeting be adjourned  
until 9.00 am on 25 July 2022.  
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I certify that the preceding paragraph(s) comprise the reasons for decision of  
the Supreme Court of Western Australia.  
FD  
Associate to the Honourable Justice Hill  
22 JULY 2022  
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