FEDERAL COURT OF AUSTRALIA
Australian Securities & Investments Commission v Axis International Management Pty Ltd (No 5) [2011] FCA 60
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
(1) On each of the occasions specified in Part A of the Schedule hereto, the first defendant, Axis International Management Pty Limited, contravened s 727(1) of the Corporations Act 2001 (Cth) by distributing an application form for an offer for the sale of shares in Firepower Holdings Group Limited.
(2) On each of the occasions specified in Part B of the Schedule hereto, the third defendant, Owston Nominees No 2 Pty Ltd, contravened s 727(1) of the Act by making an offer for the sale of shares in Firepower Holdings Group Limited;
(3) On each of the occasions specified in paragraphs 1, 2, 5, 9, 10, 12, 13, 14, and 15 of Part A of the Schedule hereto, the sixth defendant, Quentin Phillip O'Doherty Ward, contravened s 727(1) of the Corporations Act by distributing an application form for an offer for the sale of shares in Firepower Holdings Group Limited.
(1) The application against the fifth defendant be and is dismissed.
(2) The plaintiff pay the costs of the fifth defendant to be taxed if not agreed.
(3) The fifth defendant pay the plaintiff its costs thrown away by reason of the adjournment on 18 October 2010.
(4) The further hearing of the proceeding concerning disqualification orders sought under s 206E of the Corporations Act against the sixth and seventh defendants is adjourned to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
SCHEDULE
A. Paragraphs 1 and 3 of declarations – contraventions by first defendant (Axis International Management Pty Limited) and sixth defendant (Quentin Phillip O'Doherty Ward)
1. Application form provided on or about 21 September 2005 to Geoffrey Ronald Allan for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
2. Application form provided on or about 5 April 2006 to Geoffrey Ronald Allan for the sale of shares in Firepower Holdings Group Limited by the second defendant.
3. Application form provided on or about 3 October 2005 to Carol Ann Ashworth for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
4. Application form provided on or about 3 May 2006 to Carol Ann Ashworth for the sale of shares in Firepower Holdings Group Limited by the second defendant.
5. Application form provided on or about 17 May 2006 to Carol Ann Ashworth for the sale of shares in Firepower Holdings Group Limited by the second defendant.
6. Application form provided on or about 1 February 2006 to Ronald Robin Baird for the sale of shares in Firepower Holdings Group Limited by the third defendant.
7. Application form provided on or about 4 May 2006 to Ronald Robin Baird for the sale of shares in Firepower Holdings Group Limited by the second defendant.
8. Application form provided on or about 3 April 2006 to Shannon Carter for the sale of shares in Firepower Holdings Group Limited by the second defendant.
9. Application form provided on or about 22 November 2005 to Angela Jones for the sale of shares in Firepower Holdings Group Limited by the third defendant.
10. Application form provided on or about 22 November 2005 to Angela Jones and Penny Buchan for the sale of shares in Firepower Holdings Group Limited by the third defendant.
11. Application form provided on or about 5 October 2005 to Nicholas Joseph Furlan and Camelia Furlan for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
12. Application form provided in or about December 2005 to Nicholas Joseph Furlan and Camelia Furlan for the sale of shares in Firepower Holdings Group Limited by the third defendant.
13. Application form provided on or about 9 September 2005 to Darryl John Edmondson and Ludmilla Elizabeth Edmondson for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
14. Application form provided on or about 28 April 2006 to Darryl John Edmondson and Ludmilla Elizabeth Edmondson for the sale of shares in Firepower Holdings Group Limited by the second defendant.
15. Application form provided on or about 29 November 2005 to Ronald Geoffrey Nottle and Marilyn Agnes Nottle for the sale of shares in Firepower Holdings Group Limited by the third defendant.
B. Paragraph 2 of declarations – contraventions by third defendant (Owston Nominees No 2 Pty Limited)
16. Offers made on or about 24 January 2006 and 1 February 2006 for the sale to Pejean Pty Ltd of 300,000 shares in Firepower Holdings Group Limited.
17. Offers made in or about November 2005 and on or about 22 November 2005 for:
(a) the sale to Angela Jones of 10,000 shares in Firepower Holdings Group Limited; and
(b) the sale to Angela Jones and Penny Buchan as trustees of the A Jones Superannuation fund of 40,000 shares in Firepower Holdings Group Limited.
18. Offer made on or about 22 December 2005 for the sale to Angela Jones and Penny Buchan as trustees of the P Buchan Superannuation Fund of 20,000 shares in Firepower Holdings Group Limited.
19. Offer made in or about December 2005 for the sale to Nicholas Joseph Furlan and Camelia Furlan as trustees for the Furlan Superannuation Fund of 60,000 shares in Firepower Holdings Group Limited.
20. Offers made in or about November 2005 and on or about 29 November 2005 for the sale to Ronald Geoffrey Nottle and Marilyn Agnes Nottle as trustees of the RG & MA Nottle Superannuation Fund of 50,000 shares in Firepower Holdings Group Limited.
21. Offers made in or about September 2005 by Timothy Lyndhurst D'Emden for the sale to Adam John Schilling of A$52,500 worth of shares in Firepower Holdings Group Limited or more, in lots of A$52,500, at A$0.35 per share.
ANNEXURE A
[Defendant's letterhead, showing defendant's full name and the address of its registered officeAll type to be 10pt Arial]
[Address]
Your shares in Firepower Holdings Group Limited
On [date(s) of sale(s)] we sold you shares in Firepower Holdings Group Limited (Firepower).
Some offers for sale of Firepower shares broke the law
The Federal Court of Australia has ruled that, on certain occasions when we offered to sell shares in Firepower, we broke the law, because we had not lodged a prospectus with the Australian Securities and Investments Commission (ASIC).
In some circumstances, Australian laws require that, when offers to sell shares are made, a prospectus or similar document needs to come with the offers.1 Sometimes this requirement does not apply, for example when the sales are to “sophisticated investors” who (it appears from an accountant’s certificate) have net assets of at least $2,500,000 or gross income for each of the last two financial years of at least $250,000.2
Where a prospectus must come with share offers then (subject to some limitations) the law requires it to contain all the information that investors would reasonably require to make an informed assessment of:
• the rights and liabilities attaching to the shares that are being offered; and
• the assets and liabilities, financial position and performance, profits and losses and prospects of the company that issued the shares.
The court has confirmed that at least [number] times, we offered the shares for sale without a prospectus being lodged in circumstances where the prospectus requirement did apply. That means we broke the law when we made those offers.
You may have rights to claim money
The court has confirmed those breaches of the law in an order that it made on [date]. At the same time, the court ordered us to write to you in the terms of this letter. If the share offer(s) we made to you broke the law (something the court has not yet been asked to decide), you may have a right to make a legal claim against us for damages, or for a refund of the money you paid us.3 That raises legal issues, and you should get legal advice on them.
If you have any questions about this letter, please direct them to your lawyer or other professional adviser, rather than to us or ASIC.
on behalf of [Name of defendant]
ANNEXURE B
Notice to shareholders in Firepower Holdings Group Limited
The Federal Court of Australia has ruled that certain offers to sell shares in Firepower Holdings Group Limited (Firepower) were in breach of the Corporations Act 2001.
That Act prohibits offers for the sale of shares within one year of the original issue of the shares unless a prospectus is lodged with the Australian Securities and Investments Commission (ASIC) or unless certain exemptions apply. For example, an exemption applies if offers are to “sophisticated investors” who (it appears from an accountant’s certificate) have net assets of at least $2,500,000 or gross income for each of the last two financial years of at least $250,000.
The court has found that on several occasions, [name defendants] offered shares for sale where no prospectus had been lodged with ASIC and none of the exemptions applied.
Persons who bought shares in Firepower before [date] may wish to take legal advice on whether any exemptions applied in their case, and if not whether they have a right to seek damages or a refund of the money they paid for the shares.
TABLE OF CONTENTS
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| The plaintiff's case against firepower investments and green triton | [208] |
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| WESTERN AUSTRALIA DISTRICT REGISTRY | |
| GENERAL DIVISION | WAD 157 of 2008 |
| BETWEEN: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff |
| AND: | AXIS INTERNATIONAL MANAGEMENT PTY LTD (ACN 075 799 772) First Defendant FIREPOWER INVESTMENTS PTE LTD Second Defendant OWSTON NOMINEES NO 2 PTY LTD (ACN 001 769 099) Third Defendant SATTVIC PTY LTD (ACN 114 153 954) Fourth Defendant SEASWAN HOLDINGS PTY LTD (ACN 059 000 538) Fifth Defendant QUENTIN PHILLIP O'DOHERTY WARD Sixth Defendant TIMOTHY FRANCIS JOHNSTON Seventh Defendant GREEN TRITON LTD Eighth Defendant
|
| JUDGE: | GILMOUR J |
| DATE: | 8 February 2011 |
| PLACE: | PERTH |
REASONS FOR JUDGMENT
1 The plaintiff, the Australian Securities and Investments Commission, seeks declaratory and other relief with respect to various alleged contraventions of s 727(1) of the Corporations Act 2001 (Cth) (the Corporations Act). I have been greatly assisted by the parties who appeared at trial in the formulation of these reasons by their detailed written submissions. Much of these were uncontroversial and I have adopted parts from each where I could but without attribution at every point. I have attached to these reasons to which I refer variously a number of Schedules for ease of reading. The Schedules, nonetheless, form part of these reasons.
2 Broadly, s 727(1) of the Corporations Act prohibits the making, in certain circumstances, of an offer of securities or the distribution of an application form for an offer of securities that needs disclosure to investors under Part 6D.2 unless a disclosure document for the offer has been lodged with the plaintiff. The securities, in this case, comprised shares in Firepower Holdings Group Ltd (Firepower BVI).
3 No disclosure document was lodged with respect to the several offers to sell shares, which are the subject of this proceeding.
4 In each case the alleged breaches relate to offers to sell shares in Firepower Holdings BVI owned by the second, third, fifth and eighth defendants. It is alleged that these defendants contravened s 727(1) by making those offers. There are 21 offers involved.
5 Seventeen of those offers were brokered by the first defendant, Axis International Management Pty Ltd (Axis), of which the sixth defendant, Quentin Phillip O’Doherty Ward (Ward), was a director.
6 The second defendant, Firepower Investments Pte Ltd (Firepower Investments), was a company incorporated on 15 April 2005 under the laws of the Federal Territory of Labuan, Malaysia. Firepower Investments was a shareholder in Firepower BVI and a seller of its shares. The plaintiff alleges that Firepower Investments breached s 727(1) of the Corporations Act by offering to sell some of those shares as particularised in B of Schedule A and in the Summary of Offers in Schedule E.
7 Firepower Investments and the third defendant Owston Nominees No 2 Pty Ltd (Owston) did not appear at the trial. Owston, at all material times, was a substantial shareholder in Firepower BVI. Mr Warren Anderson was a director of Owston.
8 The trial of the case against the fourth defendant, Sattvic Pty Ltd, is to be heard separately in March.
9 The fifth defendant, Seaswan Holdings Pty Ltd (Seaswan), was at all material times a shareholder in Firepower BVI. Mr Gordon Hill and his wife, Diane Hill, were its directors.
10 The seventh defendant, Timothy Francis Johnston (Johnston), did not appear at the trial although he attended, by videolink from Brisbane, as a witness under subpoena at the instance of Seaswan on the last day of the trial. He wrote to the Court prior to the trial consenting to the relief sought against him "whilst still reserving (his) full rights". However, the plaintiff does not rely on that apparent consent. In his defence, Johnston has admitted he was an officer of Firepower Investments and Green Triton at the relevant times.
11 The eighth defendant Green Triton Limited (Green Triton), was a company incorporated on 1 February 2005 in the British Virgin Islands. Green Triton was a substantial shareholder in Firepower BVI and a seller of its shares. The plaintiff alleges that Green Triton breached s 727(1) of the Corporations Act by offering to sell some of those shares as particularised in F of Schedule A and in the Summary of Offers in Schedule E.
12 The plaintiff received information that both Firepower Investments and Green Triton have been deregistered. It has, with leave of the Court, discontinued against each of them but seeks findings of contraventions by them as the foundation for an order for disqualification of Johnston.
13 Relief is sought against each of Axis, Owston, Seaswan, and Ward for declarations pursuant to s 1337B of the Corporations Act, s 21 Federal Court of Australia Act 1976 (Cth) and s 39B Judiciary Act 1903 (Cth) of contraventions by those defendants of s 727(1). The declarations relate to offers for the sale of shares where:
(a) Owston and Seaswan made offers to sell shares; and
(b) Axis, Seaswan and Ward distributed application forms for offers to sell shares.
14 Particulars of the dates and parties to the relevant transactions are set out in Schedule A to these reasons:
• The alleged contraventions by Axis are particularised at A of Schedule A.
• The alleged contraventions by Owston are particularised at C of Schedule A.
• The alleged contraventions by Seaswan are particularised at E of Schedule A.
• The alleged contraventions by Ward are particularised at paragraphs 1, 2, 5, 9, 10, 11, 12, 13, 15, 16, 17 and 18 at A of Schedule A.
15 There are 21 offers which are the subject of the relief sought. They are summarised under Schedule E to these reasons.
16 Further relief is sought against Owston and Seaswan for orders pursuant to s 1324B of the Corporations Act requiring those defendants to:
(a) send a letter in terms of Schedule B hereto, to persons who hold shares in Firepower BVI sold by the relevant defendant before 7 June 2006; and
(b) advertise in terms of Schedule C hereto, in various newspapers such advertisements being directed to advising affected shareholders that sales of shares were in breach of the Act and suggesting they may like to take legal advice.
17 Relief is also sought against Ward and Johnston pursuant to s 206E of the Corporations Act for orders disqualifying them from managing corporations for a period that the Court considers appropriate. The foundation for the relief sought against Johnston are the alleged contraventions of Firepower Investments and Green Triton which are particularised at B and F, respectively, of Schedule A.
18 I have acceded to the plaintiff's request, which was without objection from any party, that I first make findings and grant relief, to whatever extent, in respect of the alleged contraventions of s 727(1). If the necessary findings are, in due course, made then disqualification orders against Ward and Johnston will be sought at a later hearing.
19 By early 2004 a company, Firepower Holdings Ltd (Firepower Cayman Islands), had been incorporated in the Cayman Islands. This company was associated with Johnston and Trevor Nairn. It was involved with the development and manufacture of liquid products and a fuel pill both of which were said to improve the power and efficiency of petrol engines and reduce carbon emissions.
20 The liquid product was being marketed by distributors in Europe, including Russia but the fuel pill was not then widely marketed.
21 About that time Johnston was introduced to Gordon Hill who was a lawyer with a small legal practice in Dunsborough, Western Australia, and a former Minister of the State Government. Hill undertook some legal work for Firepower Cayman Islands. Johnston proposed that Firepower Cayman Islands pay for that legal work by the issue of shares in that company.
22 Not long afterwards, Johnston and Nairn also proposed to Hill that he join the Firepower Cayman Island board of directors. By late August 2004 terms for Hill’s remuneration were being discussed. That remuneration was to be on the basis of a monthly fee and a share package. On 1 September 2004, Hill was appointed a director of Firepower Cayman Islands. It does not appear that Nairn took much more of a role in the affairs of that company.
23 At this time, Firepower Cayman Islands was investigating its listing on the Alternative Investment Market (AIM) of the London Stock Market. The Memorandum and Articles of Association disclose that Firepower BVI was incorporated on 2 June 2005 on the advice of London based lawyers in the British Virgin Islands for the purpose of listing on the AIM. Effectively Firepower BVI displaced Firepower Cayman Islands. The restructure occurred because of legal advice that the British Virgin Islands was a much more satisfactory jurisdiction for a proposed float on the AIM. According to that advice the legal status of companies registered in the British Virgin Islands was taken more seriously and had a better standing in the London market than that of companies registered in the Cayman Islands.
24 On 1 February 2005 Green Triton, another British Virgin Islands company, was incorporated and on 15 April 2005 Firepower Investments was incorporated in the Malaysian Federal Republic of Labuan. Johnston has admitted to being an officer of Green Triton and of Firepower Investments. Additionally, there was other uncontradicted evidence that he controlled Firepower BVI, Green Triton and Firepower Investments.
25 Incorporation of Firepower BVI was undertaken by Portcullis TrustNet (BVI) Limited a company based in Singapore. Johnston and Hill were appointed by the subscriber to the Memorandum of Association on incorporation to be the first directors of Firepower BVI.
26 There was also an Australian company, Firepower Operations Pty Limited (Firepower Operations), which operated in Australia. Firepower Operations was funded by money raised by Green Triton and Firepower Investments through share sales.
27 By a directors resolution adopted without a meeting and dated 2 June 2005 it was noted that Firepower BVI had received applications for shares and was resolved to accept those applications and to issue the shares. The plaintiff contends that Hill, one of the directors who signed the minute of the resolution, could not have done so before 29 July 2005.
28 Nonetheless, the share register shows that, amongst others, the following shares were issued by Firepower BVI on 2 June 2005:
(a) 216,508,000 shares to Green Triton;
(b) 40,000,000 shares to Owston; and
(c) 20,000,000 shares to Seaswan.
29 Seaswan is the trustee company for the G Hill Family Trust and the shares issued to Seaswan were intended to be both an incentive as well as part of the remuneration package earned by Hill for his work as a director of Firepower BVI. Hill was a director of Seaswan in the relevant period.
30 Owston was a company of which Warren Anderson, as I mentioned, was a director. Shares in Firepower BVI issued to Owston were also by way of an incentive and for consulting services rendered by Anderson.
31 The share register, as at 8 March 2008, was tendered by the plaintiff as a business record of Firepower BVI. The plaintiff also relies on the spreadsheet, created by Mr Bertram, an employee of the plaintiff from the information in the share register, which is exhibit GMB3 to his affidavit sworn on 30 March 2010. No party taking part in the trial has objected to the tender of these materials.
32 The plaintiff relied on the share register as an accurate record of the issue and sale of shares except where there is clear evidence that it is inaccurate.
33 The share register shows that in the period 2 June 2005 to 2 June 2006 a large number of sales of shares took place. This proceeding is primarily concerned with only 21 of those sales. Strictly it is concerned with the making of offers of shares and the distribution of application forms for offer of shares. The plaintiff does, however, rely on the fact that, in addition to the sales specifically relied on against the vendors, Green Triton, Firepower Investments, Owston and Seaswan made numerous other sales in that period, as detailed in the Schedule to the Further Amended Statement of Claim. I have reproduced this Schedule as Schedule D to these reasons subject only to the omission of shares sold by the fourth defendant, Sattvic Pty Ltd. The plaintiff relies on these additional sales to support its case that the vendors of the shares in the 21 specific cases had the requisite purpose when it acquired those shares, and submits that the fact that the vendors sold so many shares supports this contention. It further submits that the inference is also open from these other transactions that the issuer, Firepower BVI, had the requisite purpose in issuing the shares to the vendors.
34 Section 727(1) of the Corporations Act provides that:
A person must not make an offer of securities, or distribute an application form for an offer of securities, that needs disclosure to investors under Part 6D.2 unless a disclosure document for the offer has been lodged with ASIC.
35 Under s 727(2) of the Corporations Act any disclosure document must then accompany the offer form for the securities.
36 Part 6D.2 of the Corporations Act sets out in:
(a) Division 2 – the offers that need disclosure to investors; and
(b) Division 3 – the types of disclosure documents.
37 Pursuant to s 707(1) of the Corporations Act, an offer of securities for sale needs disclosure to investors only if disclosure is required by sub-sections (2), (3) or (5). Sections 708 and 708A contain certain exemptions.
38 The plaintiff relies on s 707(3) which provides that:
An offer of a body’s securities for sale within 12 months after their issue needs disclosure to investors under this Part if:
(a) the body issued the securities without disclosure to investors under this Part; and
(b) either:
(i) the body issued the securities with the purpose of the person to whom they were issued selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them; or
(ii) the person to whom the securities were issued acquired them with the purpose of selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them;
and section 708 or 708A does not say otherwise.
39 Disclosure in respect of an offer to sell, rather than issue, securities is therefore only required under s 707(3) where the purpose of the issue or acquisition of the securities was for on–sale or transfer. This is an anti–avoidance provision, aimed at attempts by on-selling or transferring shares to circumvent disclosure requirements for initial offerings of securities.
40 Relevantly, s 707(3) is directed not merely to the first on–sale of shares, but any subsequent re-sales. The words “an offer ... for sale” refers, in my opinion, to any offer, rather than just the first offer. It would undermine the anti-avoidance effect of the section if it were confined to the first offer, as an initial sale could be made with an available exemption under s 708 and all subsequent offers would not be caught even where no exemption applied.
41 The plaintiff submits, and I accept, that the decision in Re Timor Sea Petroleum NL (2000) 35 ACSR 186 does not require a different conclusion. It was there decided that, if the exemption for a scheme of arrangement applied (s 708(17)), then it applied not just to the issue of shares as part of the scheme but also to a subsequent sale which was also part of the scheme. Warren J, as her Honour then was, at [25] in obiter said that she did not think that s 707(3) was concerned with subsequent sales. Moreover, the case concerned the Corporations Law provision which was significantly different to s 707(3) of the Corporations Act. In particular, the former provision did not cover the purpose of the person to whom the shares were issued, and dealt solely with the purpose of the issuer of the shares. The current provision accordingly captures a broader scope of conduct.
42 The plaintiff also relies on s 707(4) of the Corporations Act which contains a deeming provision in these terms:
For the purposes of subsection (3):
(a) securities are taken to be:
(i) issued with the purpose referred to in subparagraph (3)(b)(i); or
(ii) acquired with the purpose referred to in subparagraph (3)(b)(ii);
if there are reasonable grounds for concluding that the securities were issued or acquired with that purpose (whether or not there may have been other purposes for the issue or acquisition); and
(b) without limiting paragraph (a), securities are taken to be:
(i) issued with the purpose referred to in subparagraph (3)(b)(i); or
(ii) acquired with the purpose referred to in subparagraph (3)(b)(ii);
if any of the securities are subsequently sold, or offered for sale, within 12 months after issue, unless it is proved that the circumstances of the issue and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the securities were issued or acquired with that purpose.
43 Thus, where shares are sold or offered for sale within 12 months of issue the purpose for which the shares were issued will be taken to be one of the purposes under subpara (3)(b)(i) or (3)(b)(ii) unless it is proved “that the circumstances of the issue and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the securities were issued or acquired with that purpose”. Section 707(4)(b), in effect, creates a rebuttable presumption that securities sold within 12 months of their issue were issued or acquired for the purpose of re–sale within s 707(3).
44 Paragraphs (3)(b) and (4)(b) of s 707 are both expressed disjunctively. Accordingly, in order for the statutory presumption in s 707(4)(b) to be rebutted it is necessary for there to be proof of reasonable grounds establishing that neither the issuer nor the acquirer had the necessary purpose.
45 The object of Part 6D.2 is to protect investors by requiring that certain kinds of offers are made with disclosure to investors, in a disclosure document that contains specific information meeting the requirements of Part 6D.2, and which must first be lodged with the plaintiff. Accordingly, the disclosure requirements in s 707 are directed at protecting investors involved in capital raisings.
46 An “offer of securities” includes both an offer to sell securities as well as an invitation for offers to purchase securities: s 700(2) of the Corporations Act. This definition goes beyond the common law concept of what constitutes an "offer" although it will include a contractual offer capable of giving rise to a binding obligation immediately upon acceptance: Ford's Principles of Corporations Law 14th Ed at [22.070]; Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) (2005) 53 ACSR 305 at 324.
47 For the purpose of Chapter 6D, the person who offers securities is the person who has the capacity, or who agrees, to issue or transfer the securities if the offer is accepted: s 700(3).
48 The word "purpose" is relevantly defined in the Macquarie Dictionary as " the object for which anything exists or is done, made, used" and "an intended or desired result; end or aim".
49 The High Court, albeit in a trade practices case, explained “purpose” as meaning the subjective "end sought to be achieved" by the relevant persons: News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563. This is apt in the present context. The relevant purpose under s 707(3) is therefore the subjective end or object sought to be achieved by either the issuer when issuing the shares, or by the subscriber when acquiring the shares. Section 707(3) does not require that the relevant purpose be the sole purpose.
Distributing application forms
50 Section 727(1) prohibits a person from making an offer of securities as well as from distributing an application form for such an offer that needs disclosure to investors under Part 6D.2 unless a disclosure document for the offer has been lodged with the plaintiff. The proper construction of this provision is central to the issues between the plaintiff and Axis and Ward which I will consider later.
Exemptions to disclosure requirement
51 Sections 708 and 708A contain a number of exemptions to the disclosure requirements in cases such as small scale offerings, where the investors are sophisticated or professional investors.
52 The defendants bear the onus of proving facts which would bring them within an exemption: Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc (2009) ACSR 1 at [40].
53 The plaintiff submits, correctly, that the following propositions emerge from the relevant statutory provisions:
(a) The object of Chapter 6D is to protect investors by ensuring that they have certain information about a company when they participate in a capital raising for the company.
(b) Unless certain exemptions apply, a person offering securities for issue in a company must provide the required disclosure to investors: s 706.
(c) The disclosure requirement applies to the resale of securities by an intermediary within 12 months of their issue, where:
(i) the issuer issued the securities with the purpose that the intermediary would resell them; or
(ii) the intermediary acquired the securities with the purpose of reselling them: s 707(3).
(d) The purpose test is satisfied when either the issuer or the intermediary had the requisite purpose: ss 707(3)(b) and 707(4)(a).
(e) There is a statutory presumption that the purpose test for either the issuer or the intermediary is satisfied where the intermediary resells the securities within 12 months of their issue: s 707(4)(b).
(f) The statutory presumption can be rebutted by proof that neither the issuer nor the intermediary had the requisite purpose. That is, to rebut the presumption it must be proved that both issuer and intermediary lacked the requisite purpose: ss 707(3)(b) and 707(4)(b).
(g) The purpose test can be applied in the case of two or more resales within the 12 month period: s 707(3).
(h) Both the offer of securities without disclosure and the distribution of application forms for securities without disclosure are prohibited: s 727(1).
54 The following affidavits were read, subject, in some cases, to partial omission following concessions or rulings upholding objections.
Affidavits tendered by ASIC
Deponent Date
Robin Ronald Baird (except paras13 & 39second sentence) 22.04.08
Carol Ann Ashworth 23.04.08
Gregory Vernon Ashworth (except paras 9, 12, 16 & first sentence of 11) 23.04.08
Ronald Geoffrey Nottle 23.04.08
Marilyn Agnes Nottle 23.04.08
Ludmilla Elizabeth Edmondson 24.04.08
Darryl John Edmondson 24.04.08
Nicolino Gileno 28.04.08
Benjamin Carter 30.04.08
Shannon Farrell Carter 30.04.08
Ian Jeffrey Craig 08.05.08
Nicholas Joseph Furlan (except paras 22 and highlighted
parts of 18 and 22) 13.06.08
Camelia Furlan 25.08.10
Geoffrey Ronald Allan 26.06.08
Penny Therese Buchan 01.07.08
Angela Janet May Jones 01.07.08
John Finnin 10.07.08
Linda Michelle Sandwell 04.08.08
Adam John Schilling 14.01.09
Antonio Trusso 15.01.09
Gary Martyn Bertram (except for the
transcripts of s 19 examinations, being exhibits GMB2,
GMB3, GMB4, GMB5 (Gary Conwell); GMB7, GMB8,
GMB9 (Leslie Stein); GMB11, GMB12, GMB13, GMB16
(Kim Stokeld); GMB18, GMB19, GMB20 (Quentin Ward);
GMB22 (Gordon Hill), GMB24 (Alfred John Catt); GMB26
(Timothy D'Emden); GMB28 (Vincenzo Vallelonga); GMB30,
GMB31 (Timothy Johnston). 27.03.09
Su-King Hii 21.05.09
Nola Janice Allan 25.02.10
Gary Martyn Bertram 30.03.10
Affidavits tendered by Seaswan
Deponent Date
Gary Jonathon Conwell 30.04.09
Gordon Leslie Hill 30.04.09
Diane Jean Hill 30.04.09
55 The plaintiff and Seaswan each rely on s 76 and s 77 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) which together provide for the use of statements made during s 19 examinations as evidence in legal proceedings.
56 Pursuant to s 76(1) a statement made by a person at an examination of the person is admissible in evidence against that person unless that person can take the objections (described in general terms) that:
(a) they have a privilege against self incrimination pursuant to s 68(3);
(b) the statement is not relevant and they object to the tender;
(c) the statement is qualified or explained by another statement, evidence of that statement is not tendered and they object to the tender;
(d) the statement discloses matters in respect to which a claim for legal professional privilege could be made and they object to the tender.
57 The statement can be used against the person even where the proceeding is heard together with a proceeding against another person: s 76(2) of the ASIC Act.
58 Pursuant to s 77 a statement made at a s 19 examination is admissible in evidence about a matter where:
(a) direct evidence of that matter could be given by the person being examined; and
(b) the evidence tends to establish the matter,
without the examinee being called to give evidence where:
(c) the person cannot be present for a variety of reasons including that they have died or unfit, cannot be found or they live outside the State or Territory and it would not be reasonably practicable to secure their attendance; or
(d) unless another party to the proceedings requires their attendance as a witness and the tendering party does not call them as a witness.
59 No party has required the attendance of any of the s 19 examinees at this trial.
60 Admissions made by a natural person in a s 19 examination may be relied on against a company of which he or she is or was an agent: Australian Securities & Investments Commission v Fortescue Metals Group Ltd (No 2) (2009) 176 FCR 529.
61 A statement can be used where the written record of the s 19 examination has been signed by the examinee or otherwise authenticated. Here each of the transcripts sought to be tendered has either been signed or, in the case of the examination of Ms Stokeld on 3 March 2008, has been authenticated by the affidavit of Gary Martyn Bertram sworn 27 March 2009. Mr Bertram is a senior ASIC investigator in the Deterence – Financial Services Team in Western Australia.
62 The plaintiff relies on the s 19 transcripts of the following:
(a) Mr Ward, as admissions under s 76, both against himself and against Axis;
(b) Mr Hill, as admissions under s 76, against Seaswan;
(c) Mr Johnston, as admissions under s 76, against himself and against Green Triton and Firepower Investments;
(d) Mr Conwell, as admissions against Firepower BVI under s 76, and under s 77(b);
(e) Mr Stein, as admissions against Firepower BVI under s 76, and under s 77(b);
(f) Ms Stokeld, as admissions against Firepower BVI under s 76, and under s 77(b);
(g) Mr Catt, under s 77(b);
(h) Mr D’Emden, as admissions against Owston and Seaswan under s 76, and under s 77(b); and
(i) Mr Vallelonga, as admissions against Axis under s 76, and under s 77(b).
63 The defendants bear the onus of proving that the exemptions to the disclosure requirements apply. None has attempted to discharge this onus.
64 The evidence demonstrates that no statutory exemptions arise. Each investor deposes in his or her affidavit to the fact the exemptions did not apply to him or her, or the company that purchased the shares. There is evidence that Firepower BVI was not or could not have been listed on any prescribed financial market. The evidence discloses that the investors were, colloquially, "mums and dads" and "ordinary investors".
65 A summary of the 21 offers is contained in Schedule E to these reasons. I find, on the basis of the evidence summarised in Schedule E that the shares in each case were offered for sale as alleged by the plaintiff. Seventeen of the 21 offers were brokered by Axis. Axis and Ward have admitted that they were authorised to distribute share application forms and had authority to offer the shares for sale on behalf of the relevant vendors. It is accepted by the plaintiff in its case against Axis and Ward, that neither Axis nor Ward had the authority to effect or agree to a transfer or conclude an agreement to transfer the shares if the offer was accepted.
66 The plaintiff, Axis and Ward made a written agreement about the facts to be relied on by the plaintiff against those defendants. It is dated 15 October 2010, signed by the solicitors for the parties and is evidence in this case as between the parties to the agreement. The agreement is in a document entitled 'Statement of Factual Matters not in Dispute', a copy of which, absent the annexures, is Schedule F to these reasons. The plaintiff relies on those facts for all purposes of this trial in respect of the seventeen transactions involving Axis and Ward. I am satisfied, in any event, subject to what follows, that the evidence as a whole supports findings of fact consistent with those agreed. The agreed facts include that Firepower BVI issued 215,585,500 of its shares to Green Triton and 40,000,000 to Owston on or after 29 July 2005. This is inconsistent with the share register of Firepower BVI which discloses that 216,508,000 shares were issued to Green Triton and 40,000,000 shares to Owston on 2 June 2005. These differences are immaterial so far as they concern any part of the plaintiff's case.
67 The facts relied on by the plaintiff in relation to the other four offers, which I also find are made out on the evidence, are also set out below. The evidence to which I have referred is in Schedule E but also includes the evidence adduced by Seaswan.
Allans – first purchase of shares (145,000 shares owned by Green Triton)
68 Nola Janice Allan and Geoffrey Ronald Allan (Allans) are the trustees for the Teret Superannuation Fund.
69 On about 21 September 2005, Axis, by Ward, gave a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Geoffrey Allan.
70 This application form stated that:
(a) the vendor was Green Triton;
(b) the price per Share was A$0.35;
(c) the Allans would be applying for 145,000 shares;
(d) the total consideration payable was A$50,750; and
(e) payment was to be made to ANZ Banking Group Limited, Melbourne for account of UBS AG, Singapore in the name of Green Triton.
71 This application form was for the sale of shares on behalf of Green Triton that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the application form on behalf of Green Triton.
72 On 21 September 2005, the Allans signed the Application Form.
73 The Allans returned the completed Application Form together with a cheque for the purchase of 145,000 shares in Firepower BVI at 35 cents each, at a total cost of $50,750 to Ward.
74 The sale of 145,000 shares owned by Green Triton to the Allans was completed when the transfer of the shares was entered in the Share Register of Firepower BVI (Register) (which bears the date 8 March 2006) and a certificate for those shares was issued to the Allans as trustee for the Teret Superannuation Fund (dated 20 March 2006).
Allans – second purchase of shares (75,000 shares owned by Firepower Investments)
75 Geoffrey Allan again met with Ward at Ward's office on or about 5 April 2006.
76 At this meeting, Axis, by Ward, provided Geoffrey Allan another application form.
77 This application form stated that:
(a) the vendor of the shares was Firepower Investments;
(b) the price per Share was US$1 or A$1.38; and
(c) payment for the shares was to be made via the Morgan Alteruthemeyer Trust Account.
78 This application form was for the sale of shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
79 At or after the meeting on or about 5 April 2006, Geoffrey Allan completed the following details on the application form, and then signed and returned it to Ward:
(a) the figure "75,000" for the number of shares purchased;
(b) "$103,500.00" for the total price; and
(c) the Allans' details and the date 5 April 2006.
80 Geoffrey Allan returned the completed application form to Ward together with a cheque in the amount of $103, 500 to the Morgan Alteruthemeyer Trust Account as payment.
81 The sale of 75,000 shares owned by Firepower Investments to the Allans was completed when the transfer of the shares was entered in the Register (which bears the date 22 May 2006) and a certificate for those shares was issued to the Allans as trustee for the Teret Superannuation Fund (dated 22 May 2006).
Ashworths – first purchase of shares (145,000 shares owned by Green Triton)
82 Gregory Vernon Ashworth and Carol Ann Ashworth (Ashworths) are trustees for their self-managed superannuation fund, called "Ashdown Superannuation Fund" (Ashdown SF).
83 On or about 3 October 2005, Axis, by Vallelonga, sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Carol Ashworth.
84 This application form stated that:
(a) the purchaser of the shares would be Gregory Vernon Ashworth and Carol Ann Ashworth ATF Ashdown Superannuation Fund;
(b) the vendor of the shares was Green Triton;
(c) the price per share was A$0.35;
(d) the Ashworths would be applying for 145,000 shares;
(e) the total consideration payable was A$50,750; and
(f) payment for the shares should be made to the Morgan Alteruthemeyer trust account.
85 This application form was for shares to be transferred by Green Triton, that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the application form on behalf of Green Triton.
86 On or about 1 November 2005, the Ashworths completed the following details on the application form and then signed and returned it to Ward:
(a) "$50,750.00" for the sum of the cheque enclosed with the form; and
(b) Gregory Vernon Ashworth and Carol Ann Ashworth's details, passport numbers and the date "3-10-05".
87 The Ashworths paid for the shares by a cheque for $50,750 made out to the Morgan Alteruthemeyer trust account, which they provided to Ward.
88 The sale of 145,000 shares owned by Green Triton to the Ashdown SF was completed when the transfer of the shares was entered in the Register (which bears the date 8 March 2006) and a certificate for those shares was issued to the Ashworths (dated 20 March 2006).
Ashworths – second purchase of shares (27,500 shares owned by Green Triton)
89 On or about 3 May 2006, Axis, by Vallelonga, emailed Carol Ashworth a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd".
90 The application form stated that:
(a) the purchaser of the shares was Carol Ann Ashworth;
(b) the vendor of the shares was Firepower Investments;
(c) Carol Ashworth would be applying for 27,500 shares;
(d) the price per Share was US$1 or A$1.30;
(e) the total consideration payable was A$35,750; and
(f) payment for the shares should be made to the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonwealth Bank.
91 This application form was for the sale of shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
92 On or about 5 May 2006, Carol Ashworth completed the following details on the application form and then signed and returned it to Vallelonga:
(a) she inserted the figure for the cheque she had enclosed with the application form in the appropriate place on the form;
(b) she inserted her telephone contact details onto the appropriate place on the form; and
(c) she inserted the date "5-5-06".
93 Carol Ashworth returned the completed application form to Vallelonga together with a cheque for A$35,750 made out to the Morgan Alteruthemeyer trust fund for the purchase of the shares.
94 The sale of 27,500 shares from Firepower Investments to Carol Ashworth was completed when the transfer of the shares was entered in the Register (which bears the date 26 May 2006) and a certificate for those shares was issued to Carol Ashworth (dated 26 May 2006).
Ashworths – third purchase of shares (22,000 shares owned by Firepower Investments)
95 On or about 17 May 2006, Axis, by Ward, sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to the Ashworths for the sale of 22,000 fully paid shares at A$1.31 per Share.
96 The application form stated that:
(a) the purchaser was Gregory Vernon Ashworth and Carol Ann Ashworth ATF Ashdown Superannuation Fund;
(b) the vendor of the shares was Firepower Investments;
(c) the price per Share was US$1 or A$1.31;
(d) the Ashworths would be applying for 22,000 shares;
(e) the total consideration payable was $28,820; and
(f) payment for the shares should be made via the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonwealth Bank.
97 This application form was for the sale of shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
98 On or about 17 May 2006, Carol Ashworth completed the following details on the application form and then signed and returned it to Ward:
(a) "35,750.00" as the sum of the cheque payable to the Morgan Alteruthemeyer Account;
(b) she inserted her work telephone number; and
(c) "17-5-06" as the date.
99 The Ashworths returned the application form to Ward together with a cheque made out to the Morgan Alteruthemeyer trust account for A$53,820. This cheque included $28,820 for the purchase of the Firepower BVI shares, and $25,000 for an unrelated transaction.
100 The sale of 22,000 shares from Firepower Investments to Ashdown SF was completed when the transfer of the shares was entered in the Register (which bears the date 6 June 2006) and a certificate for those shares was issued to the Ashworths (dated 6 June 2006.
Baird – first purchase of shares (300,000 shares owned by Owston)
101 Robin Ronald Baird (Baird) and Margot Louise Baird are the two directors of Pejean Pty Ltd (Pejean). Pejean is the trustee of the RMZ Superannuation Fund (RMZ SF).
102 On or about 1 February 2006, Axis, by Vallelonga, sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Baird.
103 The application form indicated that:
(a) the vendor of the shares was Owston;
(b) the price per Share was $A0.50;
(c) Baird would be applying for 300,000 shares;
(d) the total consideration payable for the shares was A$150,000; and
(e) payment for the shares should be made to the Morgan Alteruthemeyer trust account.
104 This application form was the sale of shares on behalf of Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the application form on behalf of Owston.
105 On or about 1 February 2006, Baird completed the following details on the application form and then signed and returned it to Axis by Vallelonga:
(a) "01/02/2006" as the date; and
(b) "Pejean Pty Ltd ATF RM2 Superannuation Fund" under the section "shares to be held in the name of".
106 Baird paid for the shares by cheque for A$150,000 payable to the Morgan Alteruthemeyer trust account and provided it to Axis by Ward.
107 The sale of 300,000 shares owned by Owston to Pejean was completed when the transfer of the shares was entered in the Register (which bears the date 1 February 2006).
Baird – second purchase of shares (154,000 shares owned by Firepower Investments)
108 On or about 4 May 2006, Axis, by Vallelonga sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Baird.
109 This application form stated that:
(a) the vendor of the shares was Firepower Investments;
(b) the price per Share was US$1 or A$1.30;
(c) payment for the shares should be made to the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonwealth Bank.
110 This application form was for the sale of shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
111 On or about 4 May 2006, Baird completed the following details on the application form and then signed and returned it to Axis by Vallelonga:
(a) "154,000" as the number of shares;
(b) "200,200" as the total consideration payable;
(c) "$200,200" as the sum of the cheque payable to the Morgan Alteruthemeyer Trust Account;
(d) "Pejean Pty Ltd ATF RMZ Superannuation Fund" under the section "shares to be held in the name of"; and
(e) Pejean's details and "4 May 2006" as the date.
112 Baird paid for the shares by a cheque payable to the Morgan Alteruthemeyer trust account for A$200,200.
113 The sale of 154,000 shares owned by Firepower Investments was completed when the transfer of the shares was entered in the Register (which bears the date 24 May 2006) and a certificate for those shares was issued to Pejean (dated 30 May 2006).
Carters – purchase of shares (22,000 shares owned by Firepower Investments)
114 On or about 3 April 2006, Axis, by Vallelonga, emailed a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Shannon Carter.
115 The application form stated that:
(a) the vendor was Firepower Investments;
(b) the price per Share was US$1 or A$1.35;
(c) Shannon Carter would be applying for 22,000 shares;
(d) the total consideration payable was A$29,700; and
(e) payment for the shares should be made to the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonwealth Bank.
116 This application form was for the sale of shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
117 On or about 4 April 2006, Shannon Carter signed and dated the application form.
118 On or about 4 April 2006, Shannon Carter returned the application form to Ward by post together with a cheque for A$29,700 payable to the Morgan Alteruthemeyer trust account, and separate bank cheque for A$1,485 payable to Axis.
119 The sale of 22,000 shares from Firepower Investments Pte Ltd to Shannon Carter was completed when the transfer of the shares was entered in the Register (which bears the date 22 May 2006) and a certificate for those shares was issued to Shannon Carter (dated 22 May 2006).
Angela Jones and Penny Buchan – purchase of shares (50,000 shares owned by Owston)
120 Angela Jones and Penny Buchan are trustees for the following self-managed superannuation funds:
(a) "The P Buchan Superannuation Fund" (Buchan SF); and
(b) "The A Jones Superannuation Fund" (Jones SF).
121 On or about 22 November 2005, Axis, by Ward, gave Jones a form headed "Share Transfer Form".
122 The Share Transfer Form stated that:
(a) the vendor was Owston;
(b) the price per Share was A$0.50;
(c) the total number of shares to be purchased was 50,000;
(d) the total consideration payable was A$25,000; and
(e) payment was to be made to Owston via Morgan Alteruthemeyer Trust Account.
123 The form was for the sale of shares on behalf of Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
124 On or about 22 November 2005, Jones and Buchan completed the following details on the Share Transfer Form, and then signed and returned it to Ward:
(a) "Angela May Jones & Penny Therese Buchan ATF The A Jones Superannuation Fund & Angela May Jones as Tenants in Common 1. A Jones Super Fund holding 40,000 of 50,000 shares 2.Angela May Jones holding 10,000 of 50,000 shares" in the section "shares to be held in the name of";
(b) Jones's address; and
(c) "22/11/2005" as the date.
125 At the same time as completing the Share Transfer Form, Jones prepared a cheque for A$20,000 from her Macquarie Bank account, which was the bank account for Jones SF and gave it to either Ward or Vallelonga. Short after the meeting, Jones paid $5,000 by bank cheque and sent it to Axis.
126 The sale of the shares was completed when the transfer of the shares was entered in the Register (which bears the date 22 November 2005) and a certificate for those shares was issued to Jones and Buchan (dated 20 March 2006).
Penny Buchan – purchase of shares (20,000 shares owned by Owston)
127 On or about 22 November 2005, Axis, by Ward provided another Share Transfer Form to Buchan and Jones.
128 The Share Transfer Form stated that:
(a) the vendor was Owston;
(b) the price per Share was A$0.50;
(c) the total number of shares to be purchased was 20,000;
(d) the total consideration payable was A$10,000; and
(e) payment was to be made to Owston via Morgan Alteruthemeyer Trust Account.
129 The Share Transfer Form was for the sale of shares on behalf of Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
130 Buchan and Jones completed the following details on the Share Transfer Form, and then signed it and gave to Ward:
(a) "Penny Therese Buchan & Angela May Jones ATF The P Buchan Superannuation Fund" in the section "shares to be held in the name of";
(b) Jones's address; and
(c) "22/11/2005" as the date.
131 Penny Buchan prepared a cheque for A$10,000 from The P Buchan Superannuation Fund and dated it 22 December 2005 and gave it to Ward together with the completed Share Transfer Form. Ms Buchan, in her written evidence, said that she was not sure whether she incorrectly dated the cheque 22 December 2005 instead of 22 November 2005, being the date on the Share Transfer Form, or whether she signed the cheque after the 22 November meeting and dated it correctly. Nothing turns on this question.
132 The sale of shares was completed when the transfer of the shares was entered in the Register (which bears the date 22 November 2005) and a certificate for those shares was issued to Jones and Buchan (dated 22 March 2006).
Furlans – first purchase of shares (202,000 owned by Green Triton)
133 On about September 2005 Nicholas Joseph Furlan and Camelia Furlan (Furlans) met Ward at Ward's offices in Subiaco.
134 On or about 5 October 2005, Axis, by Vallelonga sent an email attaching a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to the Furlans.
135 The application form stated that:
(a) the vendor was Green Triton;
(b) the price per share was A$0.35;
(c) the total number of shares to be purchased was 202,000;
(d) the total consideration payable was A$70,700;
(e) the shares were to be held in the name of "Nicholas Furlan & Camelia Furlan ATF Furlan Family Superannuation Fund AND Nicholas Furlan & Camelia Furlan (As Tenants in Common) AS TENANTS IN COMMON With Furlan Family Superannuation Fund holding 145,000 of 202,000 shares and Nicholas & Camelia Furlan holding 57,000 of 202,000 shares"; and
(f) payment was to be made to Green Triton via Morgan Alteruthemeyer Trust Account.
136 The application form was for shares to be transferred by Green Triton that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the form on behalf of Green Triton.
137 On or about 12 October 2005, the Furlans, on behalf of themselves and as trustees of Furlan SF, signed the form, dated it "12th Oct 2005" and then returned it to Ward.
138 The Furlans paid A$19,950 for the purchase of the shares by cheque, and resolved to pay A$50,750 for the shares as trustees of the Furlan SF.
139 The sale of shares was completed when the transfer of the shares was entered in the Register (which bears the date 8 March 2006) and a certificate for those shares was issued to the Furlans (dated 8 March 2006).
Furlans – second purchase of shares (202,000 shares owned by Owston)
140 At a meeting with Ward at the Furlan's home in December 2005, Nicholas Furlan told Ward that the Furlans would buy 60, 000 shares in Firepower BVI.
141 Axis, by Ward, provided the Furlans a form headed "Share Transfer Form".
142 The Share Transfer Form stated that:
(a) the shares were to be transferred from Owston, but (incorrectly) that the vendor was Seaswan;
(b) the price per Share was A$0.50;
(c) the total number of shares to be purchased was 60,000;
(d) the total consideration payable was A$30,000;
(e) the shares were to be held in the name of "Nicholas Furlan & Camelia Furlan ATF Furlan Family Superannuation Fund "; and
(f) payment was to be made to the Morgan Alteruthemeyer Trust Account.
143 The form was for the sale of shares to be transferred by Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
144 On or about 18 January 2006, the Furlans, as trustees of the Furlan SF, signed the form, dated it "18/1/2006" and returned it to Ward.
145 The Furlans paid A$30,000 for 60,000 shares at fifty cents each by way of a cheque made out to "Morgan Alteruthemeyer Trust Fund" signed and sent to Axis on or about 17 January 2006.
146 The sale of shares was completed when the transfer of the shares was entered in the Register (which bears the date 18 January 2006 and indicates that the shares were transferred from Owston to the Furlans) and a certificate for those shares was issued to the Furlan SF (dated 20 March 2006).
147 On or about 20 December 2006 the Furlans disposed of 30,000 shares by selling them to Ward. The Furlans did this by completing an "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd", which Ward had provided them with. Ward subsequently gave the Furlans a cheque for A$30,000.
Edmondsons – first purchase of shares (290,000 owned by Green Triton)
148 Ludmilla Elizabeth Edmondson and Darryl John Edmondson are the joint trustees of the DJ & LE Edmondson Superannuation Fund (Edmondson SF).
149 On or about 9 September 2005, Axis, by Ward, sent a form headed "Share Transfer Form" to the Edmondsons.
150 The Share Transfer Form stated that:
(a) the vendor was Green Triton;
(b) the price per Share was A$0.35;
(c) the total number of shares to be purchased was 290,000;
(d) the total consideration payable was A$101,500;
(e) the shares were to be held in the name of "Darryl John Edmondson & Ludmilla Elizabeth Edmondson ATF DJ & LE Edmondson Superannuation Fund"; and
(f) payment was to be made to Green Triton via Morgan Alteruthemeyer Trust Account.
151 The form was for shares to be transferred by Green Triton, that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the form on behalf of Green Triton.
152 On or about 15 September 2005, the Edmondsons signed the form, dated it "15.9.05", and returned it to Ward.
153 On 15 September 2005, the Edmondsons, as trustees of Edmondson SF, paid A$101, 500 by way of a cheque.
154 The sale of shares was completed when the transfer of the shares was entered in the Register (which bears the date 8 March 2006) and a certificate for those shares was issued to Edmondson SF (dated 20 March 2006).
Edmondsons – second purchase of shares (48,000 shares owned by Firepower Investments)
155 On or about 28 April 2006, Axis, by Ward sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to the Edmondsons.
156 The application form stated that:
(a) the vendor was Firepower Investments;
(b) the price per Share was US$1.00 or A$1.35;
(c) the total number of shares to be purchased was 48,000;
(d) the total consideration payable was A$64,800;
(e) the shares were to be held in the name of "Darryl John Edmondson & Ludmilla Elizabeth Edmondson ATF DJ & LE Edmondson Superannuation Fund"; and
(f) payment was to be made to Firepower Investments via Morgan Alteruthemeyer Trust Account.
157 The form was for shares to be transferred by Firepower Investments, that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the form on behalf of Firepower Investments.
158 On or about 28 April 2006, the Edmondsons, as trustees of the Edmondson SF, signed the form and dated it "28/4/06", and then returned it to Ward.
159 The Edmondsons paid A$64,800 for the purchase of the shares by cheque made out to "Morgan Alteruthemeyer Trust Account" sent to Ward on or about 28 April 2006.
160 The sale of shares was completed when the transfer of the shares was entered in the Register (which bears the date 24 May 2006) and a certificate for those shares was issued to Edmondson Superannuation Fund (dated 24 May 2006).
Nottles – purchase of shares (50,000 shares owned by Owston)
161 Ronald Geoffrey Nottle and Marilyn Agnes Nottle (Nottles) are the trustees of The RG & MA Nottle Superannuation Fund (Nottle SF).
162 On or about 29 November 2005, Axis, by Ward sent a letter enclosing a form headed " Share Transfer Form" to the Nottles, as trustees of the Nottle SF, for the sale of 50,000 shares at A$0.50 per Share.
163 The Share Transfer Form stated that:
(a) the vendor was Owston;
(b) the price per Share was A$0.50;
(c) the total number of shares to be purchased was 50,000;
(d) the total consideration payable was A$25,000;
(e) the shares were to be held in the name of "Ronald Geoffrey Nottle & Marilyn Agnes Nottle ATF The RG & MA Nottle Superannuation Fund"; and
(f) payment was to be made to Owston via the Morgan Alteruthemeyer Trust Account.
164 The form was for the sale of shares by Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
165 On or about 9 December 2005, Ronald Nottle, as trustee of the Nottle SF, signed the form and dated it "9-12-2005", and returned it to Ward.
166 The Nottles paid A$25,000 for the purchase of the shares by cheque made out to "Morgan Alteruthemeyer Trust Account" sent to Axis on or about 9 December 2005.
167 The sale of the shares was completed when the transfer of the shares was entered in the Register on 9 December 2005 and a certificate for those shares was issued to the Nottle SF on 31 March 2006.
Trusso Family Trust – purchase of shares (40,000 shares owned by Seaswan)
168 This offer by Seaswan did not involve a broker. The evidence about the offer is found in the affidavit of Antonio Trusso.
169 Mr Trusso is a director of Joric Pty Ltd, which is the trustee of the Trusso Family Trust. In 2005 Mr Trusso had heard about the Firepower product. He called Firepower BVI and spoke to a person who sent Mr Trusso some product for him to test in one of his trucks.
170 Mr Trusso again telephoned Firepower BVI with a view to investing. He was referred to Mr Hill. Either at or about Christmas 2005, or early January 2006, Mr Trusso spoke to Mr Hill and told him that he and some friends were interested in investing in Firepower BVI.
171 Seaswan submits that this demonstrates that it was not offering shares for sale including not inviting an offer to purchase its shares in Firepower BVI.
172 Whilst it is the position that Mr Trusso initiated the approach to Seaswan through Hill seeking to acquire Firepower BVI shares the fact is that following various exchanges between them Mr Hill ultimately offered, on behalf of Seaswan to sell to Joric Pty Ltd 40,000 Firepower BVI shares at 0.50 cents each. This was confirmed in an email from Hill to Trusso dated 19 January 2006 when he said "I am prepared to sell a final parcel at A$0.50 on the basis we discussed". Hill also emailed him an 'Application for Share Transfer from an Existing Shareholder' form as well as information about buying the shares. The form was complete as to the vendors name, Seaswan, the purchaser's name, Joric Pty Ltd atf Trusso Family Trust, the price per share and the total price. Contract details were also complete.
173 I am satisfied that these facts warrant the conclusion that Seaswan offered securities for sale to Joric whether in a direct sense or whether characterised as inviting an offer to purchase the shares. These facts satisfy the indicia as to the making of an offer referred to by Palmer J in Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) at [99]. As his Honour said at [97] and with which I respectfully agree:
[97] Section 700(2) makes it clear that the distinction between “offer” and “invitation to treat” which is drawn in the classical theory of contract formation is not to be slavishly applied in determining whether an offer requiring disclosure under Chapter 6D has been made.
. . .
Many investors would have made up their minds about whether to take up securities well before they are confronted either with the application form or with some document containing all of the terms of a contract.
174 Again as Palmer J said at [102]:
[102] The indicia of an offer of securities … need not appear in the one document or oral communication. Some pieces of information may be given later than others.
175 Mr Trusso signed and dated the form and returned it. In due course a share certificate dated 26 April 2006 was issued.
176 Seaswan also submits that the share sales were not legally capable of conclusion until after 6 June 2006 pursuant to the relevant Deed of Settlement, and that the only person with the capacity to agree to the transaction or the issue or the transfer was Johnston which occurred after the execution of the Deed by the directors of Firepower BVI.
177 This last submission misconceives the conduct proscribed by s 727. None of those facts are relevant.
The Gilenos – purchase of shares (40,000 shares owned by Seaswan)
178 Mr Trusso also enquired of Firepower BVI on behalf of his friend Mr Nicolino Gileno.
179 This offer also did not involve a broker. The evidence about it is contained in the affidavits of Nicolino Gileno and Antonio Trusso.
180 In early January 2006 Mr Hill provided a document entitled “Application for Share Transfer from an Existing Shareholder” to Mr Trusso who passed it on to Mr Gileno. Hill had not authorised or asked him to do this. That document was completed as to the vendor, Seaswan, and the price per share to be paid but it required completion as to the number of shares, the total price, and the purchaser's details.
181 Mr Gileno filled in the form on behalf of himself and Mrs Gileno for 40,000 shares for a total consideration of $20,000 and provided details of his name, address and contact numbers. He signed the form, drew a cheque and gave it back to Mr Trusso, who returned it to Mr Hill. In due course a share certificate dated 26 April 2006 was issued.
182 Seaswan referred to the chain of email correspondence in relation to this transaction in order to make the same legal submissions as they did in relation to Joric namely, that Seaswan did not invite an offer to purchase the shares and that Trusso had forwarded the application to him without first reference to him. Seaswan repeats the submission that the share sales could not be legally capable of conclusion until after 6 June 2006 pursuant to the Deed of Settlement. This last submission fails for the same reasons as I have already expressed in relation to Joric. Trusso emailed Hill on 23 January 2006 in which, amongst other things, he asked Hill whether he had a problem if the shares to be issued were in two names, one being to his business partner. This was in response to Hill's email of January 19, 2006 referred to above. Hill emailed his reply the same day advising that he had no problem with that proposal and asking whether they were to be in separate parcels as tenants in common or as joint tenants and that if they were to be in separate parcels then there should be separate forms filled in. Trusso then emailed Hill on 24 January advising him that they wanted them in separate parcels, one under the name Trusso Family Trust and the other Gileno. It concluded by thanking Hill on behalf of Gileno and himself for giving him the opportunity to purchase Firepower shares. Hill acknowledged that email by expressing his own thanks. Trusso then emailed Hill on 31 January advising him that Seaswan should have his partner's funds already and that Joric's would come later that week. Hill responded the same day by email advising that he had received Gileno's cheque and application form and had acknowledged that the day before by letter.
183 I am again satisfied, although Seaswan did not initiate the communications, that from his email dated 23 January 2006 onwards Hill on behalf of Seaswan, in effect, invited an offer from Gileno to acquire some of its Firepower BVI shares.
Schilling – purchase of shares (shares owned by Owston and Seaswan)
184 Three offers for the sale of shares by Owston and Seaswan were made to Mr Schilling through Mr D’Emden, another financial advisor and broker in Tasmania. The evidence about these offers is found in the affidavit of Adam John Schilling.
185 In his s 19 examination Mr D’Emden admits he was authorized to offer shares in Firepower BVI. Schedule D shows that Mr D’Emden brokered the sale of a total of 16 share sales by Owston. I infer from this that Mr D’Emden had Owston’s authority to offer its shares for sale.
186 Mr Schilling heard about Firepower BVI from his father. In about September 2005 he or his father contacted Mr D’Emden directly. Mr D’Emden advised that Firepower BVI shares were available in $52,500 lots.
187 Mr Schilling was willing to buy one “lot”. Mr D’Emden was informed of this. In September 2005 Mr Schilling received a document entitled “Application for Share Transfer from an Existing Shareholder”. Once again it was a pro forma document that had the name of the vendor, Owston, and the price per share already printed on it.
188 Mr Schilling filled in the number of shares, the purchase price, the method of payment and his name, address and contact details. He also signed and dated the application and sent it. An electronic funds transfer was arranged.
189 In early January 2006 Mr Schilling wanted to buy more shares. He contacted Mr D’Emden and told him this. Another document entitled “Application for Share Transfer from an Existing Shareholder” was sent to him by email. Once again the document was a pro forma but the name of the vendor, Seaswan, and the price per share of $0.50 were included.
190 According to Hill, on behalf of Seaswan, Mr D’Emden’s authority to distribute an Application Form was withdrawn prior to this occurring. In an email he sent to Johnston dated 24 January 2006 Hill wrote: “Several weeks ago I asked the boys [referring amongst others to Mr D’Emden] not to sell any more shares.” I do not accept that this was the case in respect of Mr D'Emden's authority in relation to this offer.
191 Not only was an offer made; it progressed to acceptance and settlement. Mr Schilling filled in the balance of the document to purchase 20,000 shares at $0.50 each, at a total price of $10,000, as well as his personal details. He signed the document and dated it 27 January 2006 and returned it. The copy of this document annexed to Mr Schilling's affidavit bears the handwritten notation "Approved for transfer by Seaswan" followed by Mr Hill's signature. Mr Schilling arranged the electronic transfer of the purchase monies and in due course a share certificate issued. Accordingly, I am satisfied that an offer to purchase these shares was made by Seaswan.
192 Seaswan submits that it did not invite from Mr Schilling an offer to purchase Firepower BVI shares.
193 Seaswan also submits that the share sales could not be legally capable of conclusion until after 6 June 2006 pursuant to the Deed of Settlement as the only person with the capacity to agree to the transaction or the issue or the transfer was Johnston and that this occurred after the execution of the Deed by the directors of Firepower BVI. This fails for reasons already given.
The Plaintiff's case against Axis and Ward
194 As I explained earlier, the factual elements of the contraventions alleged against Axis and Ward are not in dispute (Schedule F). The plaintiff's case against Axis and Ward, its director, turns on the proper construction of s 727(1) of the Corporations Act. If the plaintiff's contentions in this regard are correct then it will have made out its case against each of them.
195 I will first deal with the submissions of Axis and Ward which, in summary, are as follows. Section 727(1) regulates the conduct of those who carry the burden of disclosure under Chapter 6D of the Corporations Act 2001. The prohibition in s 727(1) has two limbs, but is directed at members of the same class of people. The disclosure provisions are inextricably linked with the prohibitions contained in ss 726, 727(1) and s 728 as they seek to serve the same purpose. Chapter 6D requires a contextual analysis to identify the class of people who carry the burden of disclosure and are subject to ss 726, 727(1) and 728. The relevant people are identified by reference to the capacity they have to issue or transfer securities or to agree to issue or transfer securities. Axis and Ward are not within the class of people regulated by Chapter 6D. They are, accordingly, not people subject to regulation under s 727(1).
196 Their detailed submissions as to the proper construction of s 727(1) are as follows:
(1) An offer of securities has a technical meaning in Chapter 6D: s 700(2). An “offer” for the purposes of Chapter 6D includes inviting an offer to purchase shares.
(2) Section 700(2) makes it clear that the distinction between offers and invitations to treat drawn in contractual theory is not to be applied when determining whether an offer requiring disclosure has been made under Chapter 6D: ASIC v Australian Investors Forum Pty Ltd & Ors (No 2) (2005) 53 ACSR 305.
(3) Section 700(3) provides:
(3) For the purposes of this Chapter, the person who offers securities is the person who has the capacity, or who agrees, to issue or transfer the securities if the offer is accepted.
(4) The definition in s 700(3) applies to all provisions within Chapter 6D. It identifies who are the people who offer securities. Other parts of speech and grammatical forms of that phrase have corresponding meanings: s 18A Acts Interpretation Act 1901 (Cth).
(5) Derivatives of s 700(3) are found in the subsequent provisions of Chapter 6D, including s 727(1).
(6) The emphasis of Chapter 6D disclosure is found in s 707. The emphasis is on the controller of securities to provide disclosure when securities are offered for sale “off market”: s 707(2).
(7) Section 707(3) addresses the risk that an issuer of shares tries to avoid its disclosure obligations by issuing shares to another entity for on sale. Section 707(3) addresses this risk by requiring disclosure of the kind that is comparable to the disclosure required by the original issuer had it offered its securities directly to investors.
(8) Section 707(5) imposes a comparable obligation in circumstances where the securities have been issued to a person who controlled the original issuer at the time of sale.
(9) Section 710 identifies the information that must be disclosed. It is clear that the information that must be disclosed is information that is normally in the possession of the issuer or those connected with the issuer of shares.
(10) Section 713 identifies the information that must be disclosed for continuously quoted securities. Sub-s 713(4) identifies that the purpose of the prospectus is to inform people of their right to obtain copies of documents reporting the financial position of the issuing body.
(11) Section 715 identifies the information that must be disclosed for a different form of disclosure, being an offer information statement. The information to be disclosed is by its nature information that is controlled by the body issuing securities or those connected with the issuer of shares and who might be expected to have access to the information of the issuing body.
(12) These provisions emphasize that the obligation of disclosure is on the controllers of shares. They are the people best placed to disclose to the market information required to be disclosed by the Act. They possess and control the knowledge and information of the issuing company’s business.
(13) Section 717 is a summary of what people offering securities must do to make an offer of securities. Section 717 is not the source of the obligation of disclosure and does not identify the party on whom the obligation to disclose rests as contended by ASIC.
(14) Section 719(1) identifies what ‘the person making the offer” must do if that person becomes aware of misleading information or omissions of information from disclosure documents. The “person making the offer” is the person who falls within section 700(3).
(15) Section 719(1A) identifies what “the person making the offer” may do to correct disclosure documents that are not worded in a clear, concise and effective manner. The obligation falls on those within s700(3).
(16) Section 727(1) provides:
A person must not make an offer of securities, or distribute an application form for an offer of securities, that needs disclosure to investors under Part 6D.2 unless a disclosure document for the offer has been lodged with ASIC.
(17) Section 727(1) regulates the conduct of people who offers securities. Only people within the ambit of s 700(3) are capable of making an offer of securities for the purposes of Chapter 6D.
(18) The people that are regulated by section 727(1) include the controller of the securities and those with authority and capacity to agree to transfer the securities if the offer is accepted.
(19) Although the director is an agent of the company, a person dealing with the director may assume that the director has been duly appointed and has authority to perform the duties customarily exercised or performed by that kind of officer or agent of the company: s 129 of the Corporations Act.
(20) A director is someone who can be taken to know and have access to the information that is required to be disclosed in connection with an offer of securities off market and is a person within s 700(3).
(21) A director of a company may be characterized as an agent of the company. It does not follow that, as ASIC contends, s 727(1) regulates the conduct of all people who may have an agency to represent those who offer securities.
(22) It is necessary to analyse the limits of an agent’s authority, his or her function and what access to information the agent has in determining if the agent falls within the people offering securities in s 700(3) and therefore the prohibitions in s 727(1).
(23) Agents without the capacity or authority identified in section 700(3) are not capable of contravening section 727(1) of the Act.
(24) Section 727(1) prohibits two types of conduct:
(a) making an offer of securities; or
(b) distributing an application form for the offer of securities.
(25) The conduct regulated is conduct of members of the same class of people.
(26) The meaning of s 727(1) is clear on its face and it applies to controllers of shares and those with the capacity to effect a binding agreement for the issue or transfer of shares.
(27) This interpretation is consistent with the purpose underlying Chapter 6D, which is to strike a balance between issuers and controllers of securities and potential investors.
(28) The provisions of the Act requiring disclosure in connection with off market sales of securities by parties related to the issuer, seek to control the risk that the seller will otherwise use its knowledge of the information in the issuer’s possession to the disadvantage of the buyer. The Act seeks to address that inequality by requiring disclosure: Austin and Ramsay; Ford’s Principles of Corporations Law, 12 Ed Butterworths 2005 at pages 1019 [22.110] to page 1023 [22.120].
197 Ultimately, based on the above submissions, Axis and Ward submit that they are not people required to give disclosure under s 707 of the Act; they are not people within the scope of s 700(3); and that they are not people regulated by s 727(1).
198 As to these ultimate submissions the first is misconceived, the second is correct but irrelevant and the third is wrong. As to s 707 no-one is identified there as the person required to make disclosure. That is provided for in s 717, namely the "person who wants to offer securities". Next, whilst it is true that Axis and Ward are not within the contemplation of s 700(3) the plaintiff does not contend otherwise. Its case against these defendants is not that they were persons who offer securities. The plaintiff's case is that, for the purpose of s 727(1), they were persons who distributed application forms for offers of securities which needed disclosure to investors under Part 6D.2. Finally, I do not accept the foundational submission that s 727(1) governs the conduct of only the controller of shares and those with the capacity to effect a binding agreement for the issue or transfer of shares. That being so, much of the evidence relied upon by Axis and Ward to characterise Johnston, in particular, as the controller of Firepower BVI shares is of no assistance.
199 Axis and Ward correctly submit that s 727(1) prohibits two types of conduct in making an offer of securities or distributing an application form for the offer of securities. Importantly, in my opinion, they are two quite distinct acts which are addressed by the prohibition.
200 The proscribed conduct as it relates to the distribution of an application form is not confined to that of the owner or controller of the securities. To so find would be to introduce "an artificial and unwarranted limitation" upon the scope of the provision as Street CJ described it in relation to a somewhat analogous provision in A-G (NSW) v Australian Fixed Trusts Ltd [1974] 1 NSWLR 110. Rather, in my opinion, the words, which are of general expression, prohibit "A person …", meaning any person, distributing an application form for an offer for securities even if, for example, acting as an agent.
201 There is no requirement in s 727(1) for any knowledge on the part of that person, in this case Axis or Ward, that the offers needed disclosure. Where, under s 707, disclosure is required for an offer to sell securities, distributing an application for such an offer contravenes s 727 if there is no relevant disclosure unless there is exemption from disclosure under s 708 or s 708A.
202 Axis and Ward adduced evidence as to their honesty in relation to the relevant offers and their dealings generally with Firepower BVI and investors. This evidence is strictly irrelevant to the issues which presently require determination. They may become relevant to the matter of whether Ward ought to be subject to a disqualification order. Accordingly, I have refrained from making any findings in this regard. This should not be taken as anything other than a neutral stance as to their otherwise unchallenged evidence.
203 Contrary to their submissions, the construction contended by Axis and Ward is not consistent with the primary function underlying Part 6D which is to address the imbalance of information between issuers of securities and potential investors: Corporate Law Economic Reform Program Bill Explanatory Memorandum at 8.2. Section 727(1) aims not only to proscribe the making of offers in relevant circumstances but, in aid of that, proscribes the distribution of offers by any person.
204 It follows from this construction of s 727 and in light of the agreed facts that I find the cases respectively alleged by the plaintiff against Axis and Ward established.
Purpose: sections 707(3) and 707(4)
205 It is convenient to repeat here the terms of ss 707(3) and 707(4):
707(3) An offer of a body’s securities for sale within 12 months after their issue needs disclosure to investors under this Part if:
(a) the body issued the securities without disclosure to investors under this Part; and
(b) either:
(i) the body issued the securities with the purpose of the person to whom they were issued selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them; or
(ii) the person to whom the securities were issued acquired them with the purpose of selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them;
and section 708 or 708A does not say otherwise.
707(4) For the purposes of subsection (3):
(a) securities are taken to be:
(i) issued with the purpose referred to in subparagraph (3)(b)(i); or
(ii) acquired with the purpose referred to in subparagraph (3)(b)(ii);
if there are reasonable grounds for concluding that the securities were issued or acquired with that purpose (whether or not there may have been other purposes for the issue or acquisition); and
(b) without limiting paragraph (a), securities are taken to be:
(i) issued with the purpose referred to in subparagraph (3)(b)(i); or
(ii) acquired with the purpose referred to in subparagraph (3)(b)(ii);
if any of the securities are subsequently sold, or offered for sale, within 12 months after issue, unless it is proved that the circumstances of the issue and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the securities were issued or acquired with that purpose.
206 In the cases of Green Triton, Owston and Seaswan, it is alleged they sold shares allotted to them by Firepower BVI. These sales fall within s 707(3) in as much as the offers to sell these shares were within 12 months of the allotments to them.
207 The plaintiff's primary case is that there is no, or no sufficient evidence, rebutting the statutory presumption of purpose under s 707(4)(b). However, it also relies on certain positive evidence to come within s 707(4)(a). I will now consider, in turn, the plaintiff's cases against Firepower Investments, Green Triton, Owston and Seaswan.
The plaintiff's case against firepower investments and Green Triton
208 The contraventions of s 727(1) of the Corporations Act alleged against Firepower Investments are set out under B of Schedule A to these reasons.
209 The case of Firepower Investments is different because it did not sell shares allotted to it by Firepower BVI. Rather, the plaintiff alleges the shares sold by Firepower Investments had been transferred to it by Green Triton. To succeed in respect of the Firepower Investments offers, the plaintiff requires to establish that:
(a) the subsequent re-sales are caught by s 707(3);
(b) the shares it re-sold had come to it from Green Triton; and
(c) Green Triton had the requisite purpose under s 707(3) when it acquired the shares.
210 As to (b) above, the share register, as well as email correspondence in April, May and June 2006 concerning Mr Vallelonga (of Axis), Mr Stein and Ms Stokeld (of Firepower BVI) and Mr Duncan of Badah Pty Ltd establish that:
(a) Green Triton transferred 2,500,000 shares to Firepower Investments on 22 May 2006.
(b) Heavencity Finance Ltd (a company associated with Mr Johnston ) transferred 6,000,000 shares to Firepower Investments (5,000,000 on 5 May 2006 and 1,000,000 on 22 May 2006) for transfer to Badah Pty Ltd.
(c) Firepower Investments mistakenly transferred 5,000,000 shares to Mr Les Andrews instead of Badah Pty Ltd on 5 May 2006.
(d) Firepower Investments correctly transferred 1,000,000 to Badah on 22 May 2006.
(e) Mr Andrews returned the 5,000,000 shares to Firepower Investments on 22 May 2006 and Firepower Investments transferred these shares to Green Triton on 24 May 2006.
211 It follows that Firepower Investments was left only with the 2,500,000 shares transferred to it by Green Triton. It must follow, the plaintiff submits, and I accept, that the shares transferred by Firepower Investments to the investors came out of the shares from Green Triton.
212 Gary Conwell, a consultant to Firepower Group gave evidence in his s 19 exam that Green Triton was set up as a holding entity to fund Firepower BVI. According to Ward, in his s 19 examination the monies from the sale of Firepower BVI shares by Green Triton went into Firepower BVI for the development of the company. Hill, in his s 19 examination said that some of the funds from the sales of shares by existing shareholders were used for Firepower's operational purposes. This reference to "Firepower", in context, appears to be or at least include a reference to Firepower BVI. Johnston, in his s 19 examination said that Green Triton was to "incentivise" senior executives and also to provide a structure where funds could come into the company, referring to Firepower BVI. Those funds, he said, were raised by Green Triton from its sale of shares in Firepower BVI. The funds, he said, would then be "advanced" by Green Triton to Firepower BVI although at one point he said that funds went from Green Triton to Firepower Investments but it appears ultimately to provide capital funding for Firepower BVI. Later he said Green Triton was to bring resources to the business. This I take to be a repetition of what he had stated earlier.
213 Further, according to Johnston in his s 19 examination, funds would pass through Firepower Investments from and to other companies in the group. So much is also apparent from the bank statements of each of Firepower Investments and Firepower Operations. Firepower Investments raised considerable funds from the sale of its shareholding in Firepower BVI. Its bank account statements disclose very considerable sums deposited in this respect. The evidence of Conwell, at his s 19 examination, was that that those funds were used to fund Firepower Operations. Mr Stein, a director and shareholder of the fourth defendant, in his s 19 examination, said that Firepower Investments was to be used to raise funds to be transferred to Firepower Operations. Firepower Operations used those funds to run the Firepower group of companies in Australia. According to the evidence of Ms Kim Stokeld, a person engaged by Firepower BVI to revise and maintain its register of shareholders, in her s 19 examination, Firepower Investments was set up to raise funds by the sale of shares.
214 I find, upon the above evidence, together with the evidence of share sales summarised in Schedule D concerning Green Triton and Firepower Investments that, at the time of acquiring their shares in Firepower BVI, each had the purpose of selling them in order to raise capital for Firepower BVI. I also find that Firepower BVI issued shares to each of Green Triton and Firepower Investments with the purpose that each of them sell the shares in order to raise capital for Firepower BVI. Accordingly, I find that each of Green Triton and Firepower Investments contravened s 727(1) of the Corporations Act in respect of the several offers for the sale of Firepower BVI shares as alleged by the plaintiff.
The plaintiff's case against Owston
215 The evidence with respect to the issue of shares to, and acquisition of shares by, Owston, was as follows. According to a document dated 16 August 2005 signed by Johnston and Warren Anderson, then a director of Firepower BVI, 40 million shares in Firepower BVI were alloted to Owston “in consideration of business consulting fees”. A Firepower BVI directors’ resolution dated 2 February 2006 included a resolution that 40 million shares had been issued to Owston “for services rendered”. It is not clear whether this document has been incorrectly dated with the year shown as 2006 instead of 2005. Whatever be the explanation in relation to this aspect of that document there is an application by Owston for 40 million shares in Firepower BVI dated 2 June 2005, signed by Warren Anderson. The company's share register discloses, under the reference Transaction ID.211, Owston registered as holder of 40 million shares issued on 2 June 2005. Later Firepower BVI directors’ resolutions dated 14 June 2005 and 14 February 2006 authorised, in each case, Owston to sell 20,000,000 shares.
216 According to Johnston, in his s 19 examination, any decision by Owston to sell its shares in Firepower BVI was up to Anderson. Mr Alfred Catt, a broker, was told by Hill that Firepower BVI shares were available for sale by Owston.
217 I find from this evidence that Firepower BVI allotted the shares to Owston with the purpose of Owston selling them. I find particularly compelling, in arriving at this conclusion, the fact that Owston was authorised to sell half of the shares allotted to it within less than two weeks after the allotment. I also find, for that reason and the fact that no barrier was placed in Owston's way by Firepower BVI through Johnston or otherwise as to selling down its holding, this being a matter entirely for Anderson, combined with the early resolution authorising the sale of 20 million of the shares on 14 June 2005 that Owston acquired the shares with the purpose of selling them.
218 I find that Owston contravened s 727(1) of the Corporations Act as alleged by the plaintiff.
The plaintiff's case against Seaswan
219 Although the plaintiff placed some reliance on s 707(4)(a), its primary reliance was upon the statutory presumption under s 707(4)(b) of the Corporations Act. Seaswan was the only defendant to adduce evidence seeking to rebut the statutory presumption. That evidence, in summary, was to the following effect. When Seaswan acquired its shares by allotment in June or July 2005, it intended to hold them indefinitely and for at least 12 months after Firepower BVI listed on the AIM. This was said to be consistent with what Mr Johnston had required of Mr Hill acting for Seaswan. However, at some point in the second half of 2005, an opportunity arose for Seaswan to acquire a property owned by Mrs Hill, her mother and sister. The property had been Mrs Hill’s family holiday home and had sentimental value to the family. In order to take advantage of that opportunity, Seaswan decided, contrary to its prior intention, to sell some of its Firepower BVI shares. It follows, Seaswan submits, that when it acquired the shares, it did not have the requisite purpose.
220 The plaintiff submits that this evidence does not withstand scrutiny or at least does not go far enough to rebut the statutory presumption in that, at the very least, it did not displace the presumption in respect of Firepower BVI’s intention in issuing the shares. The plaintiff submits that the evidence was overwhelming that Firepower BVI issued shares with the intention that they be re-sold and that nothing was established to the effect that the shares issued to Seaswan were in any different category.
221 According to Hill, he, on behalf of Seaswan, accepted an offer of shares from Johnston on behalf of Firepower BVI, as part of a remuneration package for work he had undertaken, and would continue to undertake, for Firepower Holdings Limited and Firepower BVI. He said that Johnston raised the question of remuneration and the possibility of his taking shares as remuneration at a meeting in or about April or May 2004.
222 He deposed that in August 2004 he communicated with Johnston in regard to his remuneration as a director of Firepower Cayman Islands, which was to include a share package and a relatively small monetary remuneration.
223 At Johnston’s instruction, Hill provided share details of shareholders, in the soon to be formed Firepower BVI, to its registry, Portcullis TrustNet (BVI) Limited. In or about April/May 2005 he provided the share registry with an initial list of shareholders. The initial list of subscribers was, according to Hill's s 19 examination, largely a “function of the allotment in the Cayman Islands company” and also included some individuals who were employees, consultants and distributors. Seaswan was included in that initial shareholding provided to Portcullis TrustNet in or about April/May 2005 prior to the incorporation of Firepower BVI on 2 June 2005 and, as Seaswan contends and the plaintiff denies, was included on the share register on the day of incorporation. An employee of Firepower BVI, Mr Gary Conwell, by his affidavit sworn 30 April 2009, said the share reconciliation conducted by him disclosed that Hill, as a director of Firepower BVI, through Seaswan, had been issued shares around the time of the formation of Firepower BVI.
224 Seaswan relied upon the proposition that initial subscribers to a company's memorandum of association are members of a company even though they may not be on the register. In other words subscriber shares are deemed to have been issued at the date of incorporation of the company: Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104 at 117.
225 The converse of course is, as was held in that case, that a person who is not a subscriber to the memorandum of association is not, and cannot become, a member unless and until that person agrees to become a member and ther name is entered in the register of members. Section 176 of the Corporations Act provides that, in the absence of evidence to the contrary, a register kept under Chapter 2C is proof of the matters shown in the register under that Chapter. Firepower BVI is not such a company. It appears to be a foreign company within the meaning of s 9 of the Corporations Act. I do not know if it was registered in Australia. The plaintiff's statement of claim alleges only that it was validly incorporated on 2 June 2005 and is and was at all material times in existence under the laws of the British Virgin Islands.
226 I did not have the benefit of submissions in reply on this point from the plaintiff although it had notice of the general submissions put by Seaswan. I note that it was Portcullis TrustNet which on 2 June 2005 subscribed the memorandum of association of Firepower BVI. I infer that it did not do so in its own right. Its capacity was as trustee on behalf of those listed as shareholders in the list provided to Ms Ng of Portcullis TrustNet in April/May 2005 one of which was Seaswan. The list was not adduced in evidence.
227 Hill said that 20 million shares were allotted to Seaswan on 2 June 2005, on the date of incorporation of Firepower BVI. This is supported by the Shareholder Summary document extracted on 23 November 2009. Further, the Exported Share Register, which contained a copy of all 3033 records, in Microsoft Excel format, created by Mr Gary Bertram, a senior ASIC investigator, from original share register records of Firepower BVI as at 3 March 2008, further corroborates this allotment to Seaswan on 2 June 2005. There is an application for shares in Firepower BVI dated 2 June 2005 signed by Hill on behalf of Seaswan. There is also a share certificate in the company dated 2 June 2005 under the company's seal certifying Seaswan as a holder of 20 million shares. The plaintiff does not accept the correctness of these records in so far as concerns the allotment or issue date of shares to Seaswan. Such issue or allotment, the plaintiff submits, took place on or after 29 July 2005.
228 Hill acknowledged that a resolution of directors dated 2 June 2005 was in fact signed on or sometime after 29 July 2005. He accepted this to be the case when shown a copy email dated 29 July 2005 to him from Ms Irene Ng of Portcullis Trustnet which attached a copy of that document. The relevant resolution concerned unspecified applications for shares received by Firepower BVI and was to the effect that the application be approved; shares and share certificates be issued and the issues be entered in the register of shares. The copy of the resolution in evidence bore a Firepower Operations Pty Ltd fax header dated 24 August 2005 on the first page.
229 I conclude, on the basis of this evidence, that the share registry document disclosing Seaswan as a shareholder as at 2 June 2005 is incorrect and that the resolution accepting applications for shares and approving those was signed on or after 29 July 2005 and that registration of Seaswan shares did not occur until shortly after that date and may well have occurred on or about 24 August 2005.
230 Accepting, as I do, that these 20 million shares were allotted shortly after 29 July 2005 and assuming, for present purposes, that this may have occurred as late as 24 August 2005, I am satisfied nonetheless that, at the time of their allotment to Seaswan, Firepower BVI did not have the purpose that Seaswan sell those shares or any of them. Indeed I find that its purpose was that these shares not be sold until some time after Firepower BVI had listed on the AIM. I am also satisfied that when it acquired these shares Seaswan, through Hill and Mrs Hill, did not have the intention of selling them, or any of them. Their purpose and therefore Seaswan's was to hold the shares indefinitely and at least for 12 months after Firepower BVI listed on the AIM. I find, accordingly, that Seaswan has rebutted the statutory presumption invoked under s 707(4)(b). I also find that there were not reasonable grounds, for the purposes of s 707(4)(a), for me to conclude that the shares were acquired with the relevant purpose contended for by the plaintiff. It follows that the plaintiff's case against Seaswan for the several alleged contraventions of s 727 of the Corporations Act fails and should be dismissed. My reasons for so finding are as follows.
Purpose of Firepower BVI: Seaswan's allotment
231 Hill deposed that in about April or May 2005, prior to the incorporation of Firepower BVI, Johnston told him on numerous occasions, both in meetings and by telephone, that he wanted Firepower BVI shares to be held in a trust and allocated to officers, staff and consultants of the company including Warren Anderson, Les Stein, David Slack, Don Klick, Gary Conwell and himself, with a view to encouraging everyone to stay with the company and work hard for growth. There was documentary evidence concerning the establishment of such a trust known as the Firepower Trust.
232 Johnston also told him that the shares for staff and consultants would best be held in the trust for allocation at a later time depending upon performance. He suggested shares could be allocated to the more senior people, such as Hill, immediately in recognition of work undertaken and the fact that he trusted them not to sell the shares. He said, on more than one occasion, that he considered that the shares would not be sold in any case, as everyone assumed that the share price would grow considerably when the company was listed on the AIM, particularly given the new contracts coming into play in Russia, the Middle East, India, Pakistan and other countries.
233 Prior to the issue of shares in Firepower BVI to Seaswan, Johnston discussed with Hill the number of shares in Firepower BVI which he was proposing to allocate to each person including Anderson, Stein, Conwell, Dan Klick, Nigel Parker, David Slack, Simone Collova, Melony Darroch (his personal assistant), Mike Thiessen and Michael Danner in Dubai, and he told Hill that the shares were not for re-sale. Hill said that Johnston also told him that no-one should be able to sell the shares until some time after Firepower BVI was listed on the AIM. Hill believes that he indicated to Johnston that the Nomads (nominated advisors) might even require the major shareholders to agree not to sell shares until after the listing on the AIM. Hill reiterated that he had a clear recollection that Johnston said to him on numerous occasions, including at the time the shares were issued, that those shares issued to senior staff and consultants were issued as an incentive and were not to be re-sold.
234 There was documentary evidence which discloses that steps were taken towards effecting a listing of Firepower BVI on the AIM. Hill knew of these matters and was involved in the early stages of assisting towards a proposed float of Firepower BVI on the AIM before and at the time the shares were issued to Seaswan by Firepower BVI.
235 Mrs Hill’s evidence, which I accept, corroborates both this understanding as to what Johnston, on behalf of Firepower BVI required as well as the intentions of Seaswan. Mrs Hill deposed to her recollection that on several occasions Johnston said in her presence that he wanted to issue shares in Firepower Cayman Islands to ‘look after his staff’ and to provide the staff with an incentive to stay with the company; to show confidence in the staff member and to encourage them to work harder for the success of the company. According to her, Johnston also said that he did not want the staff to be able to sell the shares until the company listed on the stock exchange. She overheard conversations between her husband and Johnston, on various occasions, where Johnston said that he was considering various trust structures with the intention of holding some staff members’ shares on trust to ensure that the shares were not prematurely sold. She said that Johnston told her that he intended to issue shares directly to some members of staff whom he trusted not to sell the shares and that he identified her husband as a ‘trusted’ person.
236 It is common ground that Johnston was the controller of Firepower BVI. Certainly the evidence from the s 19 examinations of Conwell, Stein and Stokeld discloses that they understood that he alone exercised authority to approve the sale of Firepower BVI shares.
237 The plaintiff submits that oral evidence given at trial by Johnston shows that Owston was free to sell its shares in Firepower BVI and that when Johnston acknowledged in cross-examination that Firepower BVI had issued shares to Seaswan for the same purpose as it had issued shares to Owston this meant that the purpose of Firepower BVI at the date of the issue of its shares to Seaswan was that Seaswan sell those shares.
238 I do not regard Johnston’s evidence-in-chief and under cross-examination, which follows, as supporting that conclusion.
MR HILL: Mr Johnston, I have just a couple of questions I need to ask you. Firstly, what was the purpose in issuing shares to Seaswan Holdings Proprietary Limited?Incentive.
Secondly, Mr Johnston, at the time you had the shares allotted, was it your intention that Seaswan would sell any shares?No.
. . .
MR PEARCE: Right. Mr Johnston, I was asking you about shares that were issued by Firepower BVI to Owston, a company associated with Mr Anderson, and I think you agreed with me that those shares had been issued to Owston in consideration for, or as compensation for, services rendered by Mr Anderson to Firepower BVI. Do you accept that?Yes.
The shares that were issued by Firepower BVI to Seaswan were issued for similar reasons to the shares that were issued to Owston?Yes.
. . .
Then the next question - this is at line 19:
So how did you respond when Mr Anderson said he wanted to - for Owston to be able to sell some of its shares?
Your answer:
Privilege. I probably would have said words to the effect that it is up to him.
Now, is that a correct statement of the position; it was up to Mr Anderson about the sale of the Owston shares?Privilege. At that time, I would have been referring to 20 million shares.
Yes, but as at that time, after June 2005, it was up to Mr Anderson about the sale of the Owston shares?Yes.
All right. Now, can we move to Seaswan. Seaswan is the company you know to be associated with Mr Hill?Yes.
A moment ago, I think, you agreed with me that shares were issued with Seaswan for similar reasons to which shares were issued to Owston; you accept that?Yes.
. . .
But the reason why shares were issued to Seaswan is the same reason why shares were issued to Owston; you accept that?Yes.
In that respect, Seaswan was in the same category as Owston; do you accept that?Yes.
You’ve said, I think, that Mr Anderson was free to sell Owston shares, and I put to you also that Mr Hill was free to sell Seaswan shares. When I say Seaswan shares, I mean shares in Firepower BVI owned by Seaswan; you understand what I mean?Yes, I understand, but, no, that was not the intent.
Well, why was it different in Seaswan’s case?I don’t see how it was different.
You accept that the purpose for which shares were issued to Seaswan was the same as the purpose for which shares were issued to Owston?Yes.
239 It is evident that both in examination-in-chief and during cross-examination Johnston directly stated that it was not his purpose, and I infer it was not Firepower BVI’s purpose, that shares allotted to Seaswan were to be sold. The evidence upon which the plaintiff relies represents, in my view, answers to indirect questions. They were indirect in that the plaintiff’s senior counsel did not ask Johnston what his or Firepower BVI’s “purpose” was. Rather the question was framed by reference to the “reason(s)” shares were issued to each of Owston and Seaswan. Johnston agreed that the reason was the same. This answer, in context, I take to be that the allotments were by way of compensation for services rendered to Johnston and Hill to Firepower BVI.
240 The ‘reason’ the shares in each case were allotted is not the same thing as the ‘purpose’ of Firepower BVI in relation to their on-sale. That distinction is evident in the last passage of cross-examination where Johnston agreed again that the reason for the allotment was the same but that “it was not the intent” that “Hill be free to sell Seaswan shares”. The word ‘intent’ used in this answer by Johnston is synonymous with Firepower BVI’s ‘purpose’.
241 I find that Johnston on a number of occasions told both Hill and his wife that the shares to “senior” people within the company, which effectively included shares issued to Seaswan as part of Hill’s renumeration, were not to be sold, at the very least, until Firepower BVI had listed on the AIM. This was certainly the position prior to 29 July 2005 or shortly thereafter, assuming, for this purpose only, that Seaswan became registered as a shareholder in Firepower BVI on or shortly after that date.
Seaswan's purpose: acquisition of Firepower BVI shares
242 Hill said that his intention, at the time of acquiring the shares, was to hold the shares indefinitely and in any case for at least 12 months after the company listed on the AIM. He also said that he has and has had escrow arrangements with other companies he has been involved in, including Goldstar Resources NL, which listed on the ASX in October 2003; New Standard Energy Ltd and Aminex Plc, which listed on the AIM and whose shares were escrowed by the London Stock Exchange. Accordingly, he did not consider it unusual that he was expected to hold onto the shares. He said that his wife, Diane, and he had purchased, or been issued with, other ‘seed shares’ in companies and in the past they had always held onto those shares, sometimes to their detriment, even when there was no specific legal requirement to do so. Hill recalled thinking that it would be "mad" to sell the Firepower BVI shares prior to listing after hearing comments about the likely increase in the value of the shares.
243 The plaintiff points to evidence that Hill knew, when Seaswan acquired its shares, that there had been sales of shares in Firepower Cayman Islands and subsequently that there was selling of shares in Firepower BVI. I do not regard that evidence as affecting my conclusions as to what was Seaswan's purpose.
244 There is further evidence relevant to the purpose of each of Firepower BVI and Seaswan. Johnston, in a letter to Hill, undated but likely to have been written shortly after 23 January 2006 and not long before Hill ceased active involvement in Firepower BVI, wrote:
As you well know I have made incentives for people in the company with shares being allocated to them however. (sic) all of them clearly know and respect that these shares could not be sold until the business was up and running and probably after the potential IPO was fully investigated.
The reference to a “potential IPO” (Initial Public Offering) I take, having regard to other evidence, to be a reference to the intended float of Firepower BVI on the AIM. This letter was written well before any ASIC investigation was instigated. I regard it as relevant in corroborating the evidence of Mr and Mrs Hill, both of whom I regarded as honest witnesses, as well as that of Johnston, in relation to the shares allotted to Seaswan. This goes to the purpose of both Firepower BVI and Seaswan. I consider it relevant to Seaswan's purpose in that I find that both Mr and Mrs Hill, Seaswan's directors, took seriously Johnston's injunction against selling down Seaswan's shares in Firepower BVI. It is also a clear indication of the purpose of Firepower BVI, through Johnston, in respect to the shares allotted to Seaswan.
245 There is also evidence which tends to show that Seaswan, through Hill, was reluctant to sell any of its Firepower BVI shares. I mentioned earlier that the Trusso Family Trust, through its Trustee Joric Pty Ltd, acquired 40,000 shares from Seaswan. This followed discussions between Mr Antonio Trusso and Hill. In his affidavit, sworn on 15 January 2009, at para 11, Mr Trusso stated:
Mr Hill told me that he did not really want to sell any of his shares. I persisted, calling him on a few occasions to see if he had changed his mind.
246 This was confirmed in a responsive email to Tony Trusso from Mr Hill dated 20 January 2006 which stated:
As advised, I have not been keen to sell too many of my shares except for the fact that our family wanted to retain the in-law’s place.
247 Seaswan earned consultancy fees in 2005 totalling $238,508. As a former member of State Parliament he would also have been in receipt of a pension. His wife worked. Seaswan submits that the evidence as a whole does not support a conclusion that at the time the shares issued there was any need for Seaswan to sell any of its Firepower BVI shares in order to provide funds to Mr Hill or to his family. The plaintiff contends otherwise. It points, in particular, to evidence concerning the acquisition of interests in a family property in Dunsborough using funds from the sale of part of Seaswan's shareholding in Firepower BVI. I will now consider these competing contentions.
248 In January 1995, Hill's mother-in-law, Jean Winwood, his sister-in-law Jo-anne Maree Goff and his wife became the registered proprietors of a property situated at 13 Green Street, Dunsborough in Western Australia (“the Property”).
249 Before that date, Jean Winwood alone owned the Property. Because of her concern about losing more of the pension which was the sole source of income for her and her husband when the Property was re-valued as a result of the then housing boom, she passed part of the Property to her daughter Mrs Hill and part to her other daughter, Jo-anne Maree Goff as a gift. It appears that it was Mrs Winwood’s intention to leave the Property to the daughters in her will and that she and her husband intended to leave another property located in Bunbury to their two sons.
250 As at January 1995, Jean Winwood, as to a half interest, and Jo-anne Maree Goff and Mrs Hill, each as to a quarter interest, owned the Property as tenants-in-common.
251 A duplex had been built on the Property by Mr Bruce Winwood in or around 1974. Mrs Hill and her family grew up having beach vacations there and it had remained a favourite holiday place for the extended family for more than 35 years. It was of great sentimental value to the Winwoods as well as to Mr and Mrs Hill's children and grand children.
252 In or about June 2005, Mrs Hill told her husband that her parents were afraid that their pension and health benefits were about to decrease even further due to the increasing value of the Property. They had been decreasing over the years with every new valuation of the Property by Centrelink. At the time, in addition to the interest Mrs Jean Winwood held in the Property, she and her husband also owned a house on a half acre at 22 Constitution Street, Bunbury which had been their home for nearly 40 years.
253 Mr Bruce Winwood had had serious health problems for some time and Mr Hill was informed by his wife in June 2005 that her parents wanted desperately to retain their pension and health benefits and were considerably distressed at the prospect of having their benefits reduced further as a result of the increasing value of the Property.
254 Mrs Hill later told her husband that, after seeking advice from a financial advisor, Ron Trezise, her parents had decided, against their wishes, that they would have to sell the Property although they wanted to keep the Property in the family if at all possible. This it appears was sometime in June 2005.
255 Mrs Hill said that when the issue of his wife's parents needing to sell the Property first arose, she and her husband did not consider buying it because they did not have the money to do so. No other member of their extended family was in a financial position to do so.
256 The plaintiff points up that in June 2005 the possibility of the Property being sold was first raised which coincides with Seaswan acquiring its shares in Firepower BVI. In fact, on the plaintiff's case, which I have accepted, the shares did not issue until late August. Even so the plaintiff submits that an inference ought be drawn from this coincidence of events that the shares were acquired by Seaswan for the purpose of re-sale to fund the acquisition of the Property.
257 I am not prepared to draw this inference against Seaswan. First, it is not an inevitable inference. Second, Hill who I regarded as a truthful witness, denied in evidence that this was Seaswan's intention. Third, I accept the positive explanation of Hill and his wife that, at that time, their purpose, on behalf of Seaswan, was to retain the shares for at least 12 months after the shares listed on the AIM. Fourth, as I mention below, Hill sought to interest Johnston in acquiring the Property in or about August/September of 2005, a circumstance which is quite inconsistent with the inference as to purpose contended for by the plaintiff.
258 Nor do I consider that such an inference arises because Hill was contemplating what the plaintiff describes as a "shopping list". This refers to evidence that Hill was in correspondence with his accountant Mark Thornton in November 2005 concerning the acquisition of the Property and possibly other expenditure such as building a holiday home at a property owned by him in Augusta, building a balcony extension at his home, buying an expensive motor car for his wife and making cash gifts to his children.
259 Hill denied that these were seriously in contemplation. Certainly none of these eventuated.
260 Importantly, none of these was being contemplated at the time of the acquisition of the shares by Seaswan. These possibilities, I find, arose in November 2005 after Johnston had granted Seaswan permission to sell some of its Firepower BVI shares to deal with his family's problems concerning the Property. However even in early November 2005 the Hills were only considering whether they would purchase the Property. No decision to purchase had been made. Such is evident from Hill's email to Mark Thornton, their accountant, dated 1 November 2005 sent at 10.06 am.
261 In or about July or August 2005, Mrs Hill, who was at that time a licensed settlement agent, arranged a valuation and a market appraisal of the Property on behalf of her parents so that they would know the true market value of the Property. An appraisal addressed to Jean Winwood and Jo-anne Goff prepared by 'Professionals Dunsborough' dated 25 October 2005 was in evidence.
262 Mr Hill said that after this market appraisal was obtained he showed the Property to Johnston in about August or September 2005 when Johnston was visiting his house in Dunsborough. He said that he thought Johnston might be interested in purchasing the Property so that it could at least remain with friends and colleagues, if not family. This evidence was not challenged in cross-examination. Moreover it is corroborated by what Hill wrote to Johnston in an undated letter but which it appears was sent in January 2006 in the context of an apparent dispute between Johnston and Hill as to the sale by Seaswan of Firepower BVI shares.
263 Not long after this, in late August or early September 2005, Hill received a telephone call from Ward of Axis. During this telephone conversation, Ward told Hill that he had a client who had a "big chunk of money" who wanted to buy shares in Firepower BVI. Hill gave evidence that although he had not previously considered selling any of Seaswan’s shares, he told Ward there was a possibility that he might be interested in selling some shares, but that he would have to talk to Johnston. He said that he then had in mind the possibility of Seaswan receiving sufficient funds from a sale of some of the shares to buy the Property.
264 After Johnston’s visit to the Property and after hearing from Ward, but without discussing it with his wife as he did not want to get her hopes up, he discussed his parents-in-laws’ problems and the Property with Johnston by telephone. Despite the previous prohibition that Johnston had placed on selling Firepower BVI shares, Hill put to him a proposal that he approve Seaswan selling a small parcel of its shares in Firepower BVI in order to fund the purchase of the Property.
265 He told Johnston that Ward had approached him on behalf of clients and asked to buy a parcel of Firepower BVI shares worth about $500,000. He told Johnston that, if he were to sell some Seaswan shares to purchase the Property, it would cost about $1.1m to $1.2m and a bit extra for capital gains. According to Hill, Johnston accepted this proposal and gave approval, on behalf of Firepower BVI, for Seaswan to sell shares to acquire the Property.
266 Johnston confirmed his approval of the share sale in a second conversation with Hill, in person, in around November 2005 when Mrs Hill was present and after her husband had reported to her as to the previous conversation. During this second conversation Mrs Hill thanked Johnston for allowing Seaswan to sell some of its shares to enable the purchase of the Property. Mrs Hill also told Johnston that it meant a lot to her and her family to keep the Property within the family. In response, Johnston said words to the effect that allowing the sale of shares was nothing considering the work that her husband had done for Firepower BVI.
267 Johnston, in oral evidence, agreed that in about October/November 2005 Hill told him that his (Seaswan's) purpose in selling Firepower BVI shares was to assist his parents-in-law. No other purpose was put to Johnston during cross-examination by senior counsel for the plaintiff.
268 Hill's recollection was that, during these conversations, Johnston said that he did not want Firepower BVI's share price to go backwards and told him that any sale price had to be 50 cents per share. Johnston also made it clear to Hill that he did not want Seaswan to sell too many of its shares in Firepower BVI. This did not present a problem as, according to Hill, he only intended to sell a sufficient amount of shares to purchase the Property.
269 Hill said that, if Johnston had refused permission for Seaswan to sell shares for this purpose, the matter would have gone no further and he would not have raised his wife's expectations or hopes in relation to the purchase of the Property. The first aspect reflects what Hill wrote to Johnston in the undated letter to which I referred above:
I would never have contemplated selling without your agreement and if you had expressed any concern whatsoever it would never have gone any further.
270 After speaking with Johnston, Hill rang Ward and said that he was “…interested in selling a small parcel of the Seaswan shares” or words to that effect. He said, in effect, that he would sell only enough shares to purchase the Property. During this telephone call, Ward and he did not discuss who Ward’s buyer was or the precise quantity of shares the buyer proposed to purchase. However, Hill did tell him that the ‘share price’ was 50 cents and he gave him specific instructions not to complete applications for more than 4 million shares ($2 million). Hill said that Ward told him that he did not think he could sell that many in any case. At the end of the call, Ward said he would speak to his "offsider" Vincent Vallelonga and his clients.
271 Ward, in his s 19 Examination said that Johnson had told him that he or the board had given Hill permission for Seaswan to sell some of its Firepower BVI shares because of "personal reasons" as "some private matters had come up on a financial basis". I think it is reasonable to conclude that the "personal reasons" and "private matters" were oblique references to the Hill's concerns about his parents-in-law and the Property. John Catt, a broker, was also aware that Seaswan’s share sale was limited to the need to “buy a property" and that he needed to sell some shares to pay for it”. Johnston, in his oral testimony, agreed that in or about October/November 2005 Hill had told him that Seaswan wished to sell some of its shares in Firepower BVI to enable Hill to assist his parents-in-law.
272 Hill recalled telling Johnston later that D’Emden and Catt had also rung him to ask about purchasing Seaswan shares once they had heard that Seaswan were selling some shares.
273 Hill said that, in the light of Johnston’s agreement that Seaswan could sell enough shares to purchase the Property, in or about October or November 2005, he and his wife decided on behalf of Seaswan that Seaswan would purchase the one-half share in the Property held by Hill's mother-in-law and the one-quarter share held by his sister-in-law for the total sum of $975,000.00. He added that it would not have been workable to buy only his mother-in-law’s share as it was important to have full control of the investment.
274 Mr and Mrs Hill sought the advice of their accountant, Mark Thornton in November 2005. On his advice the Seaswan Property Trust was established on 11 November 2005, to acquire the Property.
275 Hill said that he recognised that the proceeds from the sale of shares might be sporadic and so he and his wife decided to approach their bank, the National Australia Bank, to see whether they could take out a loan to purchase the Property, with the idea being that when the proceeds of the shares had been received they would then use those funds to discharge the loan. It was proposed that the loan be obtained on an interest only basis.
276 A residential valuation report dated 14 November 2005, disclosing the client as Mrs Jean Winwood, was prepared by Mr Julian Nichols, a certified practising valuer which placed a market value of the Property at $1.1 million.
277 On 17 November 2005, Jean Winwood and Jo-anne Maree Goff accepted an offer from Seaswan as trustee for the Seaswan Property Trust to purchase their collective three-quarter interest in the Property for $975,000.00. The contract was subject to finance approval from National Australia Bank.
278 Hill said that if the necessity for purchasing the Property had not arisen, Seaswan would not have countenanced selling any, let alone a portion, of its shares in Firepower BVI. I accept this evidence.
279 The plaintiff contends that the decision to buy the Property by Seaswan was independent of the sale of the shares. It relies upon evidence that when the sales of Seaswan's shares appeared to have fallen through in February 2006, Seaswan did not seek to cancel its purchase of the Property but rather approached its bank for a loan, a course first contemplated by it in November 2005 for just this eventuality.
280 I do not accept this submission. I am satisfied that when Seaswan decided in late 2005 to sell some of its shareholding it was to enable the puchase of the Property. I accept the evidence of Hill that the reason for organising an interest-only loan facility in November 2005 was to cater for the possibilities that the prospective share sales did not go through or did not go through in time. In February 2006, it was the case that it seemed the shares sales might not proceed and Seaswan had contemplated repaying to the brokers such funds as had been paid. However, during that period of uncertainty, Hill was negotiating with Firepower BVI in relation to the shares sales as part of a wider negotiation concerning Hill's exit from Firepower BVI as a Director. Further, the brokers, D'Emden and Catt had during that period repeatedly asked him not to return the monies whilst these negotiations were on foot. Ultimately, the negotiations were successful and share sales by Seaswan for a consideration of $1,312,500 were completed. I do not regard any of this evidence as supporting the inference for which the plaintiff contends. Indeed it seems to me to have been a perfectly sensible commercial strategy for Seaswan to have in place a fall-back funding facility.
281 For all these reasons the plaintiff's claims against Seaswan fail and its application in that respect ought be dismissed with costs.
282 The power of the Court to make declaratory orders is a wide one: Re McDougall (2006) 229 ALR 158. Declaratory orders here are sought by the plaintiff as the national corporate regulator for the important public purpose of recording that contraventions of the Corporations Act relevantly by Axis, Ward and Owston, have occurred, as well as the Court’s disapproval of their contravening conduct.
283 The declaratory orders will serve an important law enforcement purpose by communicating to those defendants and the public, in a clear and concise way, that the specified conduct contravened s 727(1) of the Corporations Act. The public interest in determining and declaring that a person’s conduct contravenes provisions of the law means that declarations should be made even if they otherwise would only have “slight utility”: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 at 608.
284 There are additional reasons for making the declarations. In particular, they:
(a) are an appropriate vehicle to record the court’s disapproval of the contravening conduct: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89 at [36];
(b) will vindicate the plaintiff's claims, and thereby assist it in carrying out its duties and functions by highlighting the disclosure obligations under s 727(1) of the Act and providing deterrence to others: see analogously Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [34];
(c) will expose a significant contravention of the law: Australian Competition and Consumer Commission v Ozdirect Online Brands Pty Ltd [2009] FCA 1604 at [53];
(d) warn others (including share sellers and brokers) about the need to provide disclosure when offering shares for sale, or distributing application forms for an offer of shares, to investors: Australian Competition and Consumer Commission v IMB Group [1999] FCA 313 at [21] and
(e) warn both the investors identified in the declarations, as well as other investors who purchased shares from those defendants or via Axis and Ward, that a contravention occurred, and that they may have a right to make a claim against those defendants.
285 Section 1324B of the Act is found in Part 9.5 – Powers of Courts. It is in the following terms:
Without limiting section 1324, if, on the application of ASIC, the Court is satisfied that a person has engaged in conduct constituting a contravention of a provision of Chapter 5C, 6CA or 6D or Part 7.10, the Court may make either or both of the following orders against that person or a person involved in the contravention:
(a) an order requiring the person to whom it is directed to disclose, in the manner specified in the order to:
(i) the public; or
(ii) a particular person; or
(iii) a particular class of persons;
the information, or information of a kind, that is specified in the order and is in the person’s possession or to which the person has access;
(b) an order requiring the person to whom it is directed to publish, at the person’s own expense, in the manner and at times specified in the order, advertisements whose terms are specified in, or are to be determined in accordance with, the order.
286 Contraventions of s 727(1) are contraventions within Part 6D.3 of the Act and as such fall within one of the chapters identified for the potential application of an order.
287 Section 1324B of the Act was originally s 1004 of the Corporations Law 1989 and appears to be based on a similar provision in the Trade Practices Act 1974 (Cth) (Trade Practices Act) s 80A. That section has been repealed and replaced by ss 80C and 80D.
288 I accept the plaintiff's submission that it is appropriate to apply the policy approach set out by Stone J in Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [45]–[63] where her Honour discussed similar, but not identical, provisions of the ASIC Act, ss 12 GLA and 12 GLB, that give the Court power to order corrective advertising.
289 Relevantly to this case, her Honour considered that:
(a) any order was discretionary and that the principles governing the exercise of the discretion had been developed in the context of orders under ss 80 and 80A of the Trade Practices Act;
(b) the power should be exercised protectively and not punitively: Australian Competition and Consumer Commission v On Clinic Australia (1996) 35 IPR 635;
(c) any order should be closely related to the contravening conduct and can be directed at aiding the enforcement of the primary orders and the prevention of the repetition of such conduct: Australian Competition and Consumer Commission v Real Estate Institute of WA Inc (1999) 95 FCR 114;
(d) advertising can be justified on the basis that it may have some public educational effect in relation to the operation of the relevant legislative provisions: Australian Competition and Consumer Commission v Target Australia [2001] ATPR 41–840;
(e) the effluxion of time may have a bearing on the utility of any such orders;
(f) there may be utility in informing persons who have been misled as to the true position: Medical Benefits Fund of Australia Ltd v Cassidy & Anor at [59].
290 Australian Competition and Consumer Commission v Real Estate Institute involved a number of contraventions of Part IV of the Trade Practices Act by an industry association. The ACCC sought publicity orders to notify the public of the contraventions. French J (as his Honour then was) granted the orders and said at [49]:
In my opinion there is power to make orders under s 80 which bring the outcome of the proceedings to the attention of members of REIW A and to the public as consumers. It is important that such advertisements are seen to do more than merely announce a 'win' for the ACCC and the contrition of the respondent. Such advertisements in cases involving contraventions of Pt IV are within the power conferred by s 80 if they are directed to informing the relevant markets of the outcome of the litigation so that those in the market have at least a broad understanding of the ways in which the contravenors have had to change their conduct. This will at least alert those in the markets to question or inquire about the lawfulness of conduct in the future which may seem to contravene the Act and/or breach the injunctions which have been granted. In this way, public advertising as proposed may aid in the enforcement of the primary orders and the prevention of the repetition of the contravening conduct. In so saying, it is not intended to assert any exhaustive principle upon which the making of such orders under s 80 can be justified. It is doubtful, however, that the Court is entitled to make orders for such wide purposes as the general education of the public about the Act and its enforcement. In my opinion the proposed notices in the REIWA Review and REIWA News and the proposed advertisement in The West Australian newspaper are appropriately ancillary to the primary relief that is sought and are within power.
291 The orders sought in this case are directed to bringing, by both letter and advertisement, to the attention of those shareholders who purchased shares in the relevant period and who may have been directly affected by the failure to provide the necessary disclosure that they may have an entitlement to make a legal claim for damages or a refund of the money paid.
292 While a considerable time has passed since those shareholders purchased their shares, the limitation period for any action based on the share purchases has not yet passed. Accordingly, some of those shareholders may well have a cause of action, of which they may be unaware, and which they may be able to pursue.
293 Further, the advertisement will also have the effect of bringing to the attention of the general public, including those who may be considering fundraising, the relevant provisions of the Corporations Act and the consequences of non–compliance as well as the fact that the corporate regulator will pursue such matters.
1 For all these reasons I propose to make the declarations and orders sought by the plaintiff against each of the defendants other than Seaswan. The plaintiff’s application as against Seaswan will be dismissed with costs subject only to Seaswan being liable for the plaintiff’s costs thrown away by reason of the adjournment on 18 October 2010.
| I certify that the preceding two hundred and ninety-four (294) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. |
Associate:
A. Paragraphs 1 and 3 of declarations – alleged contraventions by first defendant (Axis International Management Pty Limited) and sixth defendant (Quentin Phillip O'Doherty Ward)
1. Application form provided on or about 21 September 2005 to Geoffrey Ronald Allan for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
2. Application form provided on or about 5 April 2006 to Geoffrey Ronald Allan for the sale of shares in Firepower Holdings Group Limited by the second defendant.
3. Application form provided on or about 3 October 2005 to Carol Ann Ashworth for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
4. Application form provided on or about 3 May 2006 to Carol Ann Ashworth for the sale of shares in Firepower Holdings Group Limited by the second defendant.
5. Application form provided on or about 17 May 2006 to Carol Ann Ashworth for the sale of shares in Firepower Holdings Group Limited by the second defendant.
6. Application form provided on or about 1 February 2006 to Ronald Robin Baird for the sale of shares in Firepower Holdings Group Limited by the third defendant.
7. Application form provided on or about 4 May 2006 to Ronald Robin Baird for the sale of shares in Firepower Holdings Group Limited by the second defendant.
8. Application form provided on or about 3 April 2006 to Shannon Carter for the sale of shares in Firepower Holdings Group Limited by the second defendant.
9. [Intentionally deleted]
10. [Intentionally deleted]
11. [Intentionally deleted]
12. Application form provided on or about 22 November 2005 to Angela Jones for the sale of shares in Firepower Holdings Group Limited by the third defendant.
13. Application form provided on or about 22 November 2005 to Angela Jones and Penny Buchan for the sale of shares in Firepower Holdings Group Limited by the third defendant.
14. Application form provided on or about 5 October 2005 to Nicholas Joseph Furlan and Camelia Furlan for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
15. Application form provided in or about December 2005 to Nicholas Joseph Furlan and Camelia Furlan for the sale of shares in Firepower Holdings Group Limited by the third defendant.
16. Application form provided on or about 9 September 2005 to Darryl John Edmondson and Ludmilla Elizabeth Edmondson for the sale of shares in Firepower Holdings Group Limited by Green Triton Limited.
17. Application form provided on or about 28 April 2006 to Darryl John Edmondson and Ludmilla Elizabeth Edmondson for the sale of shares in Firepower Holdings Group Limited by the second defendant.
18. Application form provided on or about 29 November 2005 to Ronald Geoffrey Nottle and Marilyn Agnes Nottle for the sale of shares in Firepower Holdings Group Limited by the third defendant.
B. Alleged contraventions by second defendant (Firepower Investments Pte Limited)
19. Offer made on or about 5 April 2006 for the sale to Geoffrey Ronald Allan and Nola Janice Allan as trustees for the Teret Superannuation Fund of 75,000 shares in Firepower Holdings Group Limited.
20. Offer made on or about 3 May 2006 for the sale to Carol Ann Ashworth 27,500 shares in Firepower Holdings Group Limited.
21. Offer made on or about 17 May 2006 for the sale to Carol Ann Ashworth and Gregory Vernon Ashworth of 22,000 shares in Firepower Holdings Group Limited.
22. Offers made on or about 4 May 2006 for the sale to Pejean Pty Ltd of shares in Firepower Holdings Group Limited at US$1.00 or A$1.30 per share.
23. Offers made on or about 29 March 2006 and 3 April 2006 for the sale to Shannon Carter of 22,000 shares in Firepower Holdings Group Limited.
24. Offers made in or about April 2006 and on or about 28 April 2006 for the sale to Darryl John Edmondson and Ludmilla Elizabeth Edmondson as trustees for the Edmondson Superannuation Fund of 48,000 shares in Firepower Holdings Group Limited.
C. Paragraph 2 of declarations – alleged contraventions by third defendant (Owston Nominees No 2 Pty Limited)
25. Offers made on or about 24 January 2006 and 1 February 2006 for the sale to Pejean Pty Ltd of 300,000 shares in Firepower Holdings Group Limited.
26. [Intentionally deleted]
27. Offers made in or about November 2005 and on or about 22 November 2005 for:
(a) the sale to Angela Jones of 10,000 shares in Firepower Holdings Group Limited; and
(b) the sale to Angela Jones and Penny Buchan as trustees of the A Jones Superannuation fund of 40,000 shares in Firepower Holdings Group Limited.
28. Offer made on or about 22 December 2005 for the sale to Angela Jones and Penny Buchan as trustees of the P Buchan Superannuation Fund of 20,000 shares in Firepower Holdings Group Limited.
29. Offer made in or about December 2005 for the sale to Nicholas Joseph Furlan and Camelia Furlan as trustees for the Furlan Superannuation Fund of 60,000 shares in Firepower Holdings Group Limited.
30. Offers made in or about November 2005 and on or about 29 November 2005 for the sale to Ronald Geoffrey Nottle and Marilyn Agnes Nottle as trustees of the RG & MA Nottle Superannuation Fund of 50,000 shares in Firepower Holdings Group Limited.
31. Offers made in or about September 2005 by Timothy Lyndhurst D'Emden for the sale to Adam John Schilling of A$52,500 worth of shares in Firepower Holdings Group Limited at $A0.35 per share.
E. Alleged contraventions by fifth defendant (Seaswan Holdings Pty Limited)
32. Offer made in or about January 2006 for the sale to Marisa Gileno and Nicolino Gileno of shares in Firepower Holdings Group Limited at A$0.50 per share.
33. Offer made in or about January 2006 by Gordon Leslie Hill for the sale to Joric Pty Ltd shares in Firepower Holdings Group Limited at A$0.50 per share.
34. Offer made in or about January 2006 for the sale to Adam John Schilling of A$10,00 worth of shares in Firepower Holdings Group Limited at A$0.50 per share.
F. Alleged contraventions by eighth defendant (Green Triton Limited)
40. Offer made in or about 21 September 2005 for the sale to Geoffrey Ronald Allan and Nola Janice Allan as trustees of the Teret Superannuation Fund of 145,000 shares in Firepower Holdings Group Limited.
41. Offers made in or about September 2005, and on or about 3 October 2005 for the sale to Carol Ann and Gregory Vernon Ashworth of 145,000 shares in Firepower Holdings Group Limited.
42. [Intentionally deleted]
43. [Intentionally deleted]
44. Offers made in or about September 2005, and on or about 5 October 2005 for the sale to Nicholas Joseph Furlan and Camelia Furlan of 202,000 shares in Firepower Holdings Group Limited.
45. Offers made in or about August 2005, and on or about 9 September 2005 for the sale to Darryl John Edmondson and Ludmilla Elizabeth Edmondson of 290,000 shares in Firepower Holdings Group Limited.
[Defendant's letterhead, showing defendant's full name and the address of its registered office
All type to be 10pt Arial]
Your shares in Firepower Holdings Group Limited
On [date(s) of sale(s)] we sold you shares in Firepower Holdings Group Limited (Firepower).
Some offers for sale of Firepower shares broke the law
The Federal Court of Australia has ruled that, on certain occasions when we offered to sell shares in Firepower, we broke the law, because we had not lodged a prospectus with the Australian Securities and Investments Commission (ASIC).
In some circumstances, Australian laws require that, when offers to sell shares are made, a prospectus or similar document needs to come with the offers.1 Sometimes this requirement does not apply, for example when the sales are to “sophisticated investors” who (it appears from an accountant’s certificate) have net assets of at least $2,500,000 or gross income for each of the last two financial years of at least $250,000.2
Where a prospectus must come with share offers then (subject to some limitations) the law requires it to contain all the information that investors would reasonably require to make an informed assessment of:
• the rights and liabilities attaching to the shares that are being offered; and
• the assets and liabilities, financial position and performance, profits and losses and prospects of the company that issued the shares.
The court has confirmed that at least [number] times, we offered the shares for sale without a prospectus being lodged in circumstances where the prospectus requirement did apply. That means we broke the law when we made those offers.
You may have rights to claim money
The court has confirmed those breaches of the law in an order that it made on [date]. At the same time, the court ordered us to write to you in the terms of this letter. If the share offer(s) we made to you broke the law (something the court has not yet been asked to decide), you may have a right to make a legal claim against us for damages, or for a refund of the money you paid us.3 That raises legal issues, and you should get legal advice on them.
If you have any questions about this letter, please direct them to your lawyer or other professional adviser, rather than to us or ASIC.
on behalf of [Name of defendant]
1. See sections 707 and 727 of the Corporations Act 2001 (Cth).
2. See section 708(8) of the Corporations Act 2001 (Cth).
3. See ASIC v Karl Suleman Enterprizes [ 2003] NSWSC 400.
Firepower Holdings Group Limited
The Federal Court of Australia has ruled that certain offers to sell shares in Firepower Holdings Group Limited (Firepower) were in breach of the Corporations Act 2001.
That Act prohibits offers for the sale of shares within one year of the original issue of the shares unless a prospectus is lodged with the Australian Securities and Investments Commission (ASIC) or unless certain exemptions apply. For example, an exemption applies if offers are to “sophisticated investors” who (it appears from an accountant’s certificate) have net assets of at least $2,500,000 or gross income for each of the last two financial years of at least $250,000.
The court has found that on several occasions, [name defendants] offered shares for sale where no prospectus had been lodged with ASIC and none of the exemptions applied.
Persons who bought shares in Firepower before [date] may wish to take legal advice on whether any exemptions applied in their case, and if not whether they have a right to seek damages or a refund of the money they paid for the shares.
SCHEDULE D – CROSS-REFERENCED TO SHARE REGISTER
| Date of sale | Name of selling shareholder | Number of Shares transferred | Purchase consideration per Share | Currency of purchase consideration | Purchasing shareholders' name | Purchasing shareholders' Shareholder ID 4 | Broker | Transaction ID 5 |
| 2/09/2005 | Green Triton | 71,500 | $0.35 | Australian dollars | Andrew Mark Fagan | 419 | None | 5 (p 33) 450 (p 32) |
| 6/10/2005 | Green Triton | 80,000 | $0.35 | Australian dollars | Benny Bind Pty Ltd as Trustee for the Lambert Family Superannuation Fund | 420 | None | 7 (p 33) 451 (p 32) |
| 6/10/2005 | Green Triton | 71,500 | $0.35 | Australian dollars | Anna Louise Mackay-Smith | 421 | None | 8 (p 33) 452 (p 32) |
| 6/10/2005 | Green Triton | 250,000 | $0.35 | Australian dollars | Rathbone Trustees Jersey Limited as Trustee for the Mayfair Trust | 422 | None | 9 (p 33) 453 (p 32) |
| 6/10/2005 | Green Triton | 200,000 | $0.35 | Australian dollars | John Richards & Jillian Cain (WFT Family Fund A/C) | 423 | None | 10 (p 33) 454 (p 32) |
| 6/10/2005 | Green Triton | 250,000 | $0.35 | Australian dollars | Total Assets International Limited | 260 | None | 11 (p 33) 455 (p 32) |
| 6/10/2005 | Green Triton | 50,000 | $0.35 | Australian dollars | Gregory Bruce Wilson, Marlene Joyce Wilson & Grant Gregory Wilson as tenants-in-common in equal proportions | 425 | None | 12 (p 33) 456 (p 33) |
| 6/10/2005 | Green Triton | 100,000 | $0.35 | Australian dollars | Robert David Steane | 426 | None | 13 (p 34) 457 (p 33) |
| 6/10/2005 | Green Triton | 70,000 | $0.35 | Australian dollars | Malcolm James Steane | 427 | None | 14 (p 34) 458 (p 33) |
| 27/10/2005 | Owston | 140,000 | $0.50 | Australian dollars | Tegrin Enterprises ATF The Crowe Family Trust | 661 | Axis | 604 (p 34) 603 (p 34) |
| 27/10/2005 | Owston | 140,000 | $0.50 | Australian dollars | Peter John Crowe & Anne Rosemary Crowe ATF The Crowe Family Superannuation Fund | 600 | Axis | 471 (p 34) 470 (p 34) |
| 4/11/2005 | Owston | 100,000 | $0.50 | Australian dollars | Glenn Morton Ingham & Trudy Renate Ingham ATF Glenn & Trudy Ingham Superannuation Fund | 601 | Axis | 472 (p 34) 473 (p 34) |
| 4/11/2005 | Owston | 20,000 | $0.50 | Australian dollars | Glenn Morton Ingham & Trudy Renate Ingham as Tenants in Common | 602 | Axis | 474 (p 34) 475 (p 34) |
| 11/11/2005 | Owston | 80,000 | $0.50 | Australian dollars | Julie Parker | 603 | Axis | 476 (p 34) 477 (p 34) |
| 15/11/2005 | Owston | 40,000 | $0.50 | Australian dollars | Anthony C Hunt & Tracy C Hunt ATF Hunt Superannuation Fund | 606 | Axis | 483 (p 34) 482 (p 34) |
| 15/11/2005 | Owston | 20,000 | $0.50 | Australian dollars | David Smith | 608 | Axis | 487 (p 35) 486 (p 35) |
| 16/11/2005 | Owston | 30,000 | $0.50 | Australian dollars | Robyn Stewart | 604 | Axis | 479 (p 35) 478 (p 35) |
| 17/11/2005 | Owston | 100,000 | $0.50 | Australian dollars | Thomas Anthony O'Hare & Margaret O'Hare ATF The O'Hare Family Superranuation Fund | 605 | Axis | 481 (p 35) 480 (p 35) |
| 17/11/2005 | Owston | 100,000 | $0.50 | Australian dollars | Mark Alfred Kay & Alana Jayne Kay as Tenants in Common | 607 | Axis | 485 (p 35) 484 (p 35) |
| 17/11/2005 | Owston | 100,000 | $0.50 | Australian dollars | Ian Nevin Ferguson & Wendy Samantha Ferguson | 615 | Axis | 502 (p 35) 501 (p 35) |
| 17/11/2005 | Owston | 100,000 | $0.50 | Australian dollars | Ian Nevin Ferguson & Wendy Samantha Ferguson ATF I & S Ferguson Superannuation Fund | 616 | Axis | 504 (p 35) 503 (p 35) |
| 17/11/2005 | Owston | 40,000 | $0.50 | Australian dollars | John Andrew Horan & Sandra Ann Horan ATF The JA & SA Horan Superannuation Fund | 627 | Axis | 526 (p 36) 525 (p 35) |
| 20/11/2005 | Owston | 50,000 | $0.50 | Australian dollars | Paul Douglas Nicholson | 610 | Axis | 491 (p 36) 490 (p 36) |
| 20/11/2005 | Owston | 20,000 | $0.50 | Australian dollars | Angeline Karelle Barker | 611 | Axis | 493 (p 36) 492 (p 36) |
| 20/11/2005 | Owston | 60,000 | $0.50 | Australian dollars | Kim Geoffrey Stevens | 395 | Axis | 514 (p 36) 513 (p 36) |
| 20/11/2005 | Owston | 40,000 | $0.50 | Australian dollars | Colin James Robinson & Belinda Jane Robinson ATF CJ & BJ Robinson Superannuation Fund | 625 | Axis | 522 (p 36) 521 (p 36) |
| 21/11/2005 | Owston | 50,000 | $0.50 | Australian dollars | Paul Douglas Nicholson & Angeline Karelle Barker ATF The Nicholson Superannuation Fund | 609 | Axis | 489 (p 36) 488 (p 36) |
| 21/11/2005 | Owston | 40,000 | $0.50 | Australian dollars | Wayne Lawrence Stevens & Vicky Lynette Stevens as Tenants in Common | 623 | Axis | 518 (p 36) 517 (p 36) |
| 22/11/2005 | Owston | 75,000 | $0.50 | Australian dollars | Guy Percival Magowan | 186 | Axis | 497 (p 37) 496 (p 37) |
| 22/11/2005 | Owston | 44,000 | $0.50 | Australian dollars | Ian Bakker & Quentin Ward ATF Ian Bakker Superannuation Fund | 619 | Axis | 510 (p 37) 509 (p 37) |
| 22/11/2005 | Owston | 50,000 | $0.50 | Australian dollars | Angela May Jones & Penny Therese Buchan ATF The A Jones Superannuation Fund and Angela May Jones as Tenants in Common | 620 | Axis | 512 (p 37) 511 (p 37) |
| 23/11/2005 | Owston | 40,000 | $0.50 | Australian dollars | Garry Phillip Knight & Colleen May Knight as Tenants in Common | 614 | Axis | 499 (p 37) 498 (p 37) |
| 24/11/2005 | Owston | 40,000 | $0.50 | Australian dollars | Geoffrey Laurence Stevens & Kathleen Audrey Stevens ATF Stevens Superannuation Fund | 624 | Axis | 420 (p 18) 519 (p 37) |
| 25/11/2005 | Owston | 30,000 | $0.50 | Australian dollars | Wildy Nominees Pty Ltd ATF The Wildy Family Trust No 2 | 612 | Axis | 495 (p 37) 494 (p 37) |
| 25/11/2005 | Owston | 140,000 | $0.50 | Australian dollars | John Zaccaria | 617 | Axis | 506 (p 38) 505 (p 37) |
| 27/11/2005 | Owston | 300,000 | $0.50 | Australian dollars | Michael Zaccaria | 618 | Axis | 508 (p 38) 507 (p 38) |
| 28/11/2005 | Owston | 30,000 | $0.50 | Australian dollars | Bradley Michael Stevens & Katie Marie Stevens as tenants in common | 622 | Axis | 516 (p 38) 515 (p 38) |
| 30/11/2005 | Owston | 36,000 | $0.50 | Australian dollars | Ian David Symes & Peta Sharolyn Symes ATF Ian & Peta Symes Superannuation Fund | 631 | Axis | 538 (p 38) 537 (p 38) |
| 5/12/2005 | Owston | 120,000 | $0.50 | Australian dollars | Gareth Collie | 626 | Axis | 524 (p 38) 523 (p 38) |
| 9/12/2005 | Owston | 50,000 | $0.50 | Australian dollars | Ronald Geoffrey Nottle & Marilyn Agnes Nottle ATF The RG & MA Nottle Superannuation Fund | 628 | Axis | 532 (p 38) 531 (p 38) |
| 12/12/2005 | Owston | 48,000 | $0.50 | Australian dollars | Bushswan Pty Ltd ATF The Singleton Superannuation Fund | 629 | Axis | 534 (p 38) 533 (p 38) |
| 12/12/2005 | Owston | 40,000 | $0.50 | Australian dollars | Edward Douglas Graham & Deborah Morag Graham & Andrew Douglas Graham & Katharine Morag Graham ATF The Graham Superannuation Fund | 630 | Axis | 536 (p 39) 535 (p 39) |
| 15/12/2005 | Owston | 50,000 | $0.50 | Australian dollars | Peter Francis Ridley & Jane Elizabeth Ridley ATF Peter & Jane Ridley Superannuation Fund | 669 | Axis | 622 (p 39) 621 (p 39) |
| 19/12/2005 | Owston | 40,000 | $0.50 | Australian dollars | Christopher Nigel Booth | 632 | Axis | 540 (p 39) 539 (p 39) |
| 19/12/2005 | Owston | 50,000 | $0.50 | Australian dollars | Diana Mary Bowman | 633 | Axis | 542 (p 39) 541 (p 39) |
| 19/12/2005 | Owston | 50,000 | $0.50 | Australian dollars | Jeffrey H Bowman | 634 | Axis | 544 (p 39) 543 (p 39) |
| 19/12/2005 | Owston | 100,000 | $0.50 | Australian dollars | J H Bowman & D M Bowman ATF Bowman Family Superannuation Fund | 635 | Axis | 546 (p 39) 545 (p 39) |
| 19/12/2005 | Owston | 100,000 | $0.50 | Australian dollars | Cashgold Investments Pty Ltd ATF Cosby Superannuation Fund | 638 | Axis | 552 (p 40) 551 (p 40) |
| 19/12/2005 | Owston | 50,000 | $0.50 | Australian dollars | Jeffrey Michael O'Brien & Tania Louise O'Brien ATF The JM & TL O'Brien Superannuation Fund | 639 | Axis | 554 (p 40) 553 (p 40) |
| 19/12/2005 | Owston | 100,000 | $0.50 | Australian dollars | Nicola Crupi & Caterin Crupi as Tenants in Common and Vincent Luglio & Caroline Luglio as Tenants in Common and Anna Luca and Amanda Crupi as Tenants in Common | 640 | Axis | 556 (p 40) 555 (p 40) |
| 19/12/2005 | Owston | 100,000 | $0.50 | Australian dollars | Malcolm Roger Clark & Diane Clark | 642 | Axis | 560 (p 40) 559 (p 40) |
| 20/12/2005 | Owston | 40,000 | $0.50 | Australian dollars | Keith David Jones & Dorinda Jones as Joint Tenants | 652 | Axis | 586 (p 40) 585 (p 40) |
| 20/12/2005 | Owston | 40,000 | $0.50 | Australian dollars | Bunbury Orthopaedic Pty Ltd ATF Chong Family Superannuation Fund | 637 | Axis | 550 (p 40) 549 (p 40) |
| 21/12/2005 | Owston | 80,000 | $0.50 | Australian dollars | Raymond John Williams & Janina Williams ATF Williams Superannuation Fund | 663 | Axis | 608 (p 41) 607 (p 41) |
| 21/12/2005 | Owston | 20,000 | $0.50 | Australian dollars | Deirdre Anne Clark | 636 | Axis | 548 (p 41) 547 (p 41) |
| 21/12/2005 | Owston | 60,000 | $0.50 | Australian dollars | Cosimo Vallelonga & Anna Vallelonga as Tenants in Common and Suezanne Vallelonga as Tenants in Common | 641 | Axis | 558 (p 41) 557 (p 41) |
| 22/12/2005 | Owston | 20,000 | $0.50 | Australian dollars | Penny Therese Buchan & Angela May Jones ATF The P Buchan Superannuation Fund | 643 | Axis | 562 (p 41) 561 (p 41) |
| 22/12/2005 | Owston | 105,000 | $0.50 | Australian dollars | Dr John Corran Crawford & Mrs Pamela Mary Crawford as Trustee for the Crawford Superannuation Fund | 54 | Axis | 564 (p 41) 563 (p 41) |
| 22/12/2005 | Owston | 100,000 | $0.50 | Australian dollars | Pamela Mary Crawford | 76 | Axis | 566 (p 41) 565 (p 41) |
| 22/12/2005 | Owston | 40,000 | $0.50 | Australian dollars | Garry Phillip Knight & Colleen May Knight as Tenants in Common | 614 | Axis | 568 (p 42) 567 (p 41) |
| 22/12/2005 | Owston | 60,000 | $0.35 | Australian dollars | Janelle Marie Tomlin | 672 | Axis | 711 (p 42) 710 (p 42) |
| 22/12/2005 | Owston | 65,000 | $0.35 | Australian dollars | B.I. McGougan & K.J. McGougan as Trustee for the McGougan Superannuation Fund | 183 | Axis | 715 (p 42) 714 (p 42) |
| 22/12/2005 | Owston | 150,000 | $0.35 | Australian dollars | Bradley Ian McGougan | 164 | Axis | 717 (p 42) 716 (p 42) |
| 22/12/2005 | Owston | 86,000 | $0.35 | Australian dollars | Malcolm Stephen Watkins | 275 | Axis | 719 (p 42) 718 (p 42) |
| 22/12/2005 | Owston | 215,000 | $0.35 | Australian dollars | MBM Investments Pty Ltd as Trustee for the Brett McKeon Family Trust | 167 | Axis | 2567 (p 42) 625 (p 42) |
| 23/12/2005 | Owston | 50,000 | $0.50 | Australian dollars | Hershey Nominees Pty Ltd as Trustee for the Jeff Stewart Superannuation Fund | 244 | Axis | 530 (p 42) 528 (p 42) |
| 23/12/2005 | Owston | 142,860 | $0.35 | Australian dollars | PL & CD Bagshaw as Trustee for the Bagshaw Superannuation Fund | 31 | Axis | 695 (p 43) 694 (p 43) |
| 23/12/2005 | Owston | 142,860 | $0.35 | Australian dollars | Lynette June Aitken, Peter John Gay, Terry Bernard Gay and Patricia Catherine Ogilvie | 674 | Axis | 707 (p 43) 706 (p 43) |
| 23/12/2005 | Owston | 70,000 | $0.35 | Australian dollars | Brenton Hugh Campbell | 673 | Axis | 709 (p 43) 708 (p 43) |
| 23/12/2005 | Owston | 29,000 | $0.35 | Australian dollars | Mark Joachim Woods, Carolina Marianne Woods & Jeremy Leigh Taylor ATF The Acme Superannuation Fund | 671 | Axis | 713 (p 43) 712 (p 43) |
| 24/12/2005 | Owston | 71,430 | $0.35 | Australian dollars | Marcus Arula & Karin Gay | 678 | Axis | 693 (p 43) 692 (p 43) |
| 24/12/2005 | Owston | 71,430 | $0.35 | Australian dollars | Frank Joseph & Marilyn Kaye Zarnotal | 675 | Axis | 703 (p 44) 702 (p 43) |
| 24/12/2005 | Owston | 142,860 | $0.35 | Australian dollars | Peter John Gay & Cynthia Helen Gay as tenants-in-common in equal proportions | 108 | Axis | 705 (p 44) 704 (p 44) |
| 24/12/2005 | Owston | 200,000 | $0.35 | Australian dollars | Mark Anthony Ricciuto ATF Roo Two Pty Ltd Family Trust | 693 | Axis | 657 (p 43) 656 (p 43) |
| 27/12/2005 | Owston | 57,144 | $0.35 | Australian dollars | Jillien Bagshaw | 679 | Axis | 691 (p 44) 690 (p 44) |
| 28/12/2005 | Owston | 142,860 | $0.35 | Australian dollars | Wayne Howard Curtis & Karen Lesley Curtis as Trustee for the Curtis Family Trust | 61 | Axis | 673 (p 44) 672 (p 44) |
| 29/12/2005 | Owston | 71,430 | $0.35 | Australian dollars | John S. Bagshaw | 681 | Axis | 687 (p 44) 686 (p 44) |
| 29/12/2005 | Owston | 28,572 | $0.35 | Australian dollars | R.E. & L.A. Holdsworth | 680 | Axis | 689 (p 45) 688 (p 45) |
| 29/12/2005 | Owston | 142,860 | $0.35 | Australian dollars | Brenton A Perry & Madeleine A Perry as Joint Shareholders | 677 | Axis | 697 (p 45) 696 (p 45) |
| 29/12/2005 | Owston | 1,000,000 | $0.35 | Australian dollars | Brian Franklin Martin & Patricia Joan Martin as Trustee for the Sandscope Super Fund | 251 | Axis | 699 (p 45) 698 (p 45) |
| 29/12/2005 | Owston | 28,572 | $0.35 | Australian dollars | Peter Gadsby | 676 | Axis | 701 (p 45) 700 (p 45) |
| 29/12/2005 | Owston | 142,858 | $0.35 | Australian dollars | Peter Mason | 688 | Axis | 669 (p 44) 668 (p 44) |
| 29/12/2005 | Owston | 28,572 | $0.35 | Australian dollars | Jane Louise Carey | 62 | Axis | 677 (p 44) 676 (p 44) |
| 30/12/2005 | Owston | 28,572 | $0.35 | Australian dollars | John Paul Lowry | 685 | Axis | 679 (p 45) 678 (p 45) |
| 30/12/2005 | Owston | 142,860 | $0.35 | Australian dollars | Wayne Lawrence Darling & Dianne Ruth Darling ATF Darling Superannuation Fund | 684 | Axis | 681 (p 45) 680 (p 45) |
| 30/12/2005 | Owston | 60,000 | $0.35 | Australian dollars | Ellen Grace Arbuckle | 682 | Axis | 685 (p 46) 684 (p 45) |
| 31/12/2005 | Owston | 71,430 | $0.35 | Australian dollars | Ian Desmond & Jillian Ann Rogers | 705 | Axis | 627 (p 46) 626 (p 46) |
| 2/01/2006 | Owston | 28,572 | $0.35 | Australian dollars | Jennifer Hazel Simpson | 683 | Axis | 683 (p 46) 682 (p 46) |
| 2/01/2006 | Owston | 285,715 | $0.35 | Australian dollars | Bryan Robb Financial Planning Pty Ltd | 687 | Axis | 671 (p 46) 670 (p 46) |
| 3/01/2006 | Owston | 300,000 | $0.35 | Australian dollars | Fred Parrish Investments Pty Ltd ATF Parrish Family Trust | 702 | Axis | 633 (p 46) 632 (p 46) |
| 3/01/2006 | Owston | 42,858 | $0.35 | Australian dollars | Lewpol Pty Ltd & Jimjukrina Pty Ltd & A.P. & R.L. Burgan Pty Ltd trading as The Range Estate Vineyard | 692 | Axis | 661 (p 46) 660 (p 46) |
| 3/01/2006 | Owston | 128,572 | $0.35 | Australian dollars | A.P & R.L. Burgan Superannuation Fund | 691 | Axis | 663 (p 46) 662 (p 46) |
| 3/01/2006 | Owston | 142,858 | $0.35 | Australian dollars | Kerri Anne Taylor | 689 | Axis | 667 (p 47) 666 (p 47) |
| 3/01/2006 | Owston | 80,000 | $0.35 | Australian dollars | Wendy E Brown | 686 | Axis | 675 (p 47) 674 (p 47) |
| 3/01/2006 | Owston | 114,286 | $0.35 | Australian dollars | A.P. & R.L. Burgan Pty Ltd (90,000 shares), Kristopher John Powell (10,000 shares) & Nathan David Powell (14,286 shares) | 707 | None | 721 (p 47) 720 (p 47) |
| 5/01/2006 | Owston | 100,000 | $0.35 | Australian dollars | T.L. Brown ATF T.L. Brown Family Trust, McWaters Holdings ATF McWaters Family Trust, B. Holman, R.K. Price and T.L. Brown, R.M. Brown & Y.R. Chapman | 36 | Axis | 647 (p 47) 646 (p 47) |
| 5/01/2006 | Owston | 200,000 | $0.35 | Australian dollars | T.L. & J.M. Brown ATF The T & J Brown Superannuation Fund | 697 | Axis | 649 (p 47) 648 (p 47) |
| 5/01/2006 | Owston | 142,860 | $0.35 | Australian dollars | M D Brown & K R Heatherbell ATF Heatherbell Brown Family Superannuation Fund | 696 | Axis | 651 (p 47) 650 (p 47) |
| 5/01/2006 | Owston | 142,860 | $0.35 | Australian dollars | Donn Brooklyn Darling & Jillian Denise Darling | 695 | Axis | 653 (p 48) 652 (p 48) |
| 5/01/2006 | Owston | 57,144 | $0.35 | Australian dollars | Linda Jane Clarke | 694 | Axis | 655 (p 48) 654 (p 48) |
| 5/01/2006 | Owston | 100,000 | $0.35 | Australian dollars | Christer Svensson & Susann Svensson as tenants-in-common in equal proportions | 250 | Axis | 659 (p 48) 658 (p 48) |
| 5/01/2006 | Owston | 142,860 | $0.35 | Australian dollars | Leslie Keith Hogben & Sandra Lee Hogben | 690 | Axis | 665 (p 48) 664 (p 48) |
| 6/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Kenneth Ian Gummow & Patricia Sandstrom ATF Kenneth Gummow Superannuation Fund | 670 | Axis | 624 (p 48) 623 (p 48) |
| 6/01/2006 | Owston | 30,000 | $0.50 | Australian dollars | Natalie Susan Wayne | 645 | Axis | 570 (p 48) 569 (p 49) |
| 6/01/2006 | Owston | 25,715 | $0.35 | Australian dollars | David Richard Jensen | 698 | Axis | 643 (p 49) 642 (p 48) |
| 8/01/2006 | Owston | 28,572 | $0.35 | Australian dollars | Guy Bagshaw & Tiffany Evans as tenants-in-common in equal proportions | 40 | Axis | 641 (p 49) 640 (p 49) |
| 9/01/2006 | Owston | 28,572 | $0.35 | Australian dollars | Sylvia Katalin Wells | 700 | Axis | 637 (p 49) 636 (p 49) |
| 9/01/2006 | Owston | 142,860 | $0.35 | Australian dollars | Douglas Bruce Richter & Helen Rosemary Richter | 699 | Axis | 639 (p 49) 638 (p 49) |
| 9/01/2006 | Owston | 71,430 | $0.35 | Australian dollars | Rodney James Webster & Christine Margaret Webster as tenants-in-common in equal proportions | 279 | Axis | 645 (p 49) 644 (p 49) |
| 10/01/2006 | Owston | 85,716 | $0.35 | Australian dollars | Neil Craig & Christine Craig ATF High Performance Kinetics Superannuation Fund | 701 | Axis | 635 (p 49) 634 (p 49) |
| 12/01/2006 | Owston | 60,000 | $0.50 | Australian dollars | Titan Star Holdings Pty Ltd ATF The Leclercq Family Superannuation Fund | 651 | Axis | 584 (p 50) 583 (p 50) |
| 12/01/2006 | Owston | 112,000 | $0.50 | Australian dollars | Malcolm Gammon & Christine Gammon as Trustee for the Gammon Superannuation Fund | 116 | Axis | 572 (p 49) 571 (p 49) |
| 16/01/2006 | Owston | 100,000 | $0.50 | Australian dollars | Nicholas Peter Cooke & Andrew William Cooke ATF Nick Cooke Superannuation Fund | 648 | Axis | 578 (p 50) 577 (p 50) |
| 16/01/2006 | Owston | 20,000 | $0.50 | Australian dollars | Lynette McDonald | 659 | Axis | 600 (p 50) 599 (p 50) |
| 16/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Errichetti Nominees Pty Ltd | 668 | Axis | 620 (p 50) 619 (p 50) |
| 17/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Gino & Nicole Anne Tamburri | 649 | Axis | 580 (p 51) 579 (p 50) |
| 17/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Gregory Wayne Burke | 650 | Axis | 582 (p 51) 581 (p 51) |
| 17/01/2006 | Owston | 20,000 | $0.50 | Australian dollars | Cameron Jones | 655 | Axis | 592 (p 51) 591 (p 51) |
| 17/01/2006 | Owston | 30,000 | $0.50 | Australian dollars | Christopher John Taylor & Wendy Renai Taylor ATF The Taylor Superannuation Fund | 656 | Axis | 594 (p 51) 593 (p 51) |
| 17/01/2006 | Owston | 20,000 | $0.50 | Australian dollars | Rochelle Hasey | 658 | Axis | 598 (p 51) 597 (p 51) |
| 17/01/2006 | Owston | 20,000 | $0.50 | Australian dollars | George Kolichev | 646 | Axis | 574 (p 50) 573 (p 50) |
| 17/01/2006 | Owston | 20,000 | $0.50 | Australian dollars | Zanikade Investments Pty Ltd and Zanikade Investments Pty Ltd ATF The Zanikade Superannuation Fund as Tenants in Common | 647 | Axis | 576 (p 50) 575 (p 50) |
| 18/01/2006 | Owston | 20,000 | $0.50 | Australian dollars | Moulden Holdings Pty Ltd ATF Fulco Superannuation Fund | 653 | Axis | 588 (p 51) 587 (p 51) |
| 18/01/2006 | Owston | 60,000 | $0.50 | Australian dollars | Nicholas Furlan & Camelia Furlan ATF Furlan Family Superannuation Fund | 654 | Axis | 590 (p 51) 589 (p 51) |
| 19/01/2006 | Owston | 80,000 | $0.50 | Australian dollars | John Anthony Ireland | 657 | Axis | 596 (p 52) 595 (p 52) |
| 19/01/2006 | Owston | 71,430 | $0.35 | Australian dollars | McWaters Holdings Pty LTd ATF McWaters Family Trust | 704 | Axis | 629 (p 52) 628 (p 52) |
| 19/01/2006 | Owston | 100,000 | $0.35 | Australian dollars | Robert Reginald Oatey & Raelee Gaynor Oatey ATF The Oater Superannuation Fund | 703 | Axis | 631 (p 52) 630 (p 52) |
| 24/01/2006 | Owston | 60,000 | $0.50 | Australian dollars | Robert John Brennan & Frances Therese Brennan ATF The Brennan Superannuation Fund | 660 | Axis | 602 (p 52) 601 (p 52) |
| 24/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Tanya Trevenen | 662 | Axis | 606 (p 52) 605 (p 52) |
| 25/01/2006 | Owston | 100,000 | $0.50 | Australian dollars | Natalie Susan Wayne | 645 | Axis | 612 (p 52) 611 (p 52) |
| 25/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Coachwood Holdings Pty Ltd ATF The Boasic Superannuation Fund | 666 | Axis | 616 (p 53) 615 (p 52) |
| 26/01/2006 | Owston | 40,000 | $0.50 | Australian dollars | Jimmy Tinecheff | 665 | Axis | 614 (p 53) 613 (p 53) |
| 1/02/2006 | Owston | 300,000 | $0.50 | Australian dollars | Pejean Pty Ltd ATF RMZ Superannuation Fund | 664 | Axis | 610 (p 53) 609 (p 53) |
| 7/02/2006 | Owston | 100,000 | $0.50 | Australian dollars | White Eagle Hotels Pty Ltd | 667 | Axis | 618 (p 53) 617 (p 53) |
| 8/03/2006 | Green Triton | 300,000 | $0.35 | Australian dollars | Blenkinship Family Trust | 775 | Axis | 754 (p 53) 755 (p 53) |
| 8/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | Venture (NT) Pty Ltd | 776 | None | 756 (p 54) 757 (p 54) |
| 8/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | Vicki Doyle | 777 | None | 758 (p 54) 759 (p 54) |
| 8/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | Joseph Nowak (60%) & Joseph Anthony Nowak (20%) & Michael James Nowak (20%) | 778 | None | 760 (p 54) 761 (p 54) |
| 8/03/2006 | Green Triton | 71,428 | $0.35 | Australian dollars | Robert Hugh Watkins & Beverley Gae Bessen as tenants-in-common in equal proportions | 273 | None | 762 (p 54) 763 (p 54) |
| 8/03/2006 | Green Triton | 250,000 | $0.35 | Australian dollars | Kimberley John Powley | 779 | None | 764 (p 54) 765 (p 54) |
| 8/03/2006 | Green Triton | 100,000 | $0.35 | Australian dollars | Frank Houston McClymont | 780 | None | 766 (p 54) 767 (p 54) |
| 8/03/2006 | Green Triton | 457,550 | $0.35 | Australian dollars | Firepower Investor Nominees No 1 Pty Ltd ATF Firepower Trust | 781 | None | 768 (p 54) 769 (p 54) |
| 8/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | R.A. Brooks Pty Ltd, Chun Yow Nominees Pty Ltd & Carlar Pty Ltd | 782 | None | 770 (p 54) 771 (p 54) |
| 8/03/2006 | Green Triton | 191,000 | $0.35 | Australian dollars | Liverpool St Syndicate (Phillip A. Kelly, Toni N. Tarbath, Stephanee M. Cannell, Anthony J. Cannell, Keith D. Scott, Jamadu Pty Ltd, Casey Mayo & Peter W. Meacham) | 783 | None | 773 (p 54) 774 (p 55) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Denise McAlpine Davies | 710 | None | 775 (p 55) 776 (p 55) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Peter William Davies | 711 | None | 777 (p 55) 778 (p 55) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Russell John Panting and Amanda Louise Panting as tenants in common | 712 | None | 779 (p 55) 780 (p 55) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Patrick Martin Garratt and Kara Teresa Garratt as tenants in common | 713 | None | 781 (p 55) 782 (p 55) |
| 8/03/2006 | Green Triton | 285,000 | $0.35 | Australian dollars | Andrew Clifford Oldham | 714 | None | 783 (p 55) 784 (p 55) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Garry Phillip Knight & Colleen May Knight as Tenants in Common | 614 | None | 785 (p 55) 786 (p 55) |
| 8/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | Rosalyn Hope McKay | 715 | None | 787 (p 55) 788 (p 55) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Bushswan Pty Ltd ATF The Singleton Superannuation Fund | 629 | Axis | 789 (p 56) 790 (p 56) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Deirdre Anne Clark and Gregory Allen Smith ATF Clark-Smith Superannuation Fund | 716 | None | 791 (p 56) 792 (p 56) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | FiorForce Investments Pty Ltd | 328 | None | 793 (p 56) 794 (p 56) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Stephen Walter Renshaw and Gianna Renshaw and Paul Anthony Radford and Margaret Joan Radford ATF Lightspeed Holdings Pty Ltd Superannuation Plan | 717 | None | 795 (p 56) 796 (p 56) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Lightspeed Holdings Pty Ltd | 718 | None | 797 (p 56) 798 (p 56) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Peter John Connolly and Frances Mary Connolly as tenants in common | 719 | None | 799 (p 56) 800 (p 56) |
| 8/03/2006 | Green Triton | 185,000 | $0.35 | Australian dollars | Nicholas Peter Cooke & Andrew William Cooke ATF Nick Cooke Superannuation Fund | 648 | None | 801 (p 56) 802 (p 56) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Peter John Connolly and Frances Mary Connolly ATF P & F Connolly Superannuation Fund | 720 | None | 803 (p 57) 804 (p 57) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Causa Pty Ltd ATF Madrigali Property Trust | 721 | None | 805 (p 57) 806 (p 57) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Frederick John Bock and Eva Marian Bock ATF Bockies Superannuation Fund | 722 | None | 807 (p 57) 808 (p 57) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Trevor Joseph Rosenboom and Dianne Elizabeth Rosenboom ATF TJ & DE Rosenboom Superannuation Fund | 723 | None | 809 (p 57) 810 (p 57) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Dr John Corran Crawford & Mrs Pamela Mary Crawford as Trustee for the Crawford Superannuation Fund | 54 | None | 811 (p 57) 812 (p 57) |
| 8/03/2006 | Green Triton | 290,000 | $0.35 | Australian dollars | Bryan William Davies and Alberta Femmigje Caroline Davies ATF Davies Superannuation Fund | 724 | Axis | 813 (p 57) 814 (p 57) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Michael James Ecclestone and Quentin Ward ATF The Ecclestone Superannuation Fund | 725 | Axis | 815 (p 57) 816 (p 58) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Richard Wilson and Melody Wilson as tenants in common | 726 | Axis | 817 (p 58) 818 (p 58) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Maria Isabel Vear | 727 | Axis | 819 (p 58) 820 (p 58) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Garry Phillip Knight and Colleen May Knight ATF The Knight Superannuation Fund | 728 | Axis | 821 (p 58) 822 (p 58) |
| 8/03/2006 | Green Triton | 356,000 | $0.35 | Australian dollars | Rory Graham Anderson | 729 | Axis | 823 (p 58) 824 (p 58) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Montree Pty Ltd ATF The Castalanelli Trust | 730 | Axis | 825 (p 58) 826 (p 58) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Noel Edward & Michelle Gaye Singleton as tenants-in-common in equal proportions | 243 | Axis | 827 (p 58) 828 (p 58) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Windarra Superannuation Fund | 731 | Axis | 829 (p 59) 830 (p 59) |
| 8/03/2006 | Green Triton | 115,000 | $0.35 | Australian dollars | Wayne Lawrence Stevens and Vicky Lynette Stevens ATF WL & VL Stevens Superannuation Fund and Wayne Lawrence Stevens as tenants in common | 732 | Axis | 831 (p 59) 832 (p 59) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | John Vernon Kelly and Suzanne Gail Petersen | 733 | Axis | 833 (p 59) 834 (p 59) |
| 8/03/2006 | Green Triton | 70,000 | $0.35 | Australian dollars | Coakley Pastoral CO Pty Ltd ATF T D Coakley Family Trust | 734 | Axis | 835 (p 59) 836 (p 59) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Geoffrey Ronald Allan and Nola Janice Allan ATF The Teret Superannuation Fund | 735 | Axis | 837 (p 59) 838 (p 59) |
| 8/03/2006 | Green Triton | 20,000 | $0.35 | Australian dollars | Penny Therese Buchan | 736 | Axis | 839 (p 59) 840 (p 59) |
| 8/03/2006 | Green Triton | 50,000 | $0.35 | Australian dollars | Pamela Mary Crawford | 76 | Axis | 841 (p 59) 842 (p 60) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Gary Thomas Stavretis ATF The G Stavretis Family Trust and Paul Harry Finch ATF The Finch Family Trust and Sergio Jake Manricks ATF The Manricks Family Trust as joint shareholders with equal shares | 737 | Axis | 843 (p 60) 844 (p 60) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Geoffrey Gordon Wood and Imelda Geraldine Wood ATF The GG & IG Wood Superannuation Fund | 738 | Axis | 845 (p 60) 846 (p 60) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Michael Thomas Stavretis & Wayne Paul Lawrence as joint shareholders | 739 | Axis | 847 (p 60) 848 (p 60) |
| 8/03/2006 | Green Triton | 290,000 | $0.35 | Australian dollars | Darryl John Edmondson & Ludmilla Elizabeth Edmondson ATF DJ & LE Edmondson Superannuation Fund | 740 | Axis | 849 (p 60) 850 (p 60) |
| 8/03/2006 | Green Triton | 157,143 | $0.35 | Australian dollars | Antan Pty Ltd ATF Select Superannuation Fund and Britannia Enterprises Pty Ltd ATF Keywest Trust and Guy & Wendy Lehmann ATF Lehmann Superannuation Fund as tenants in common | 741 | Axis | 851 (p 60) 852 (p 61) |
| 8/03/2006 | Green Triton | 30,000 | $0.35 | Australian dollars | Brett Philip Vinci | 742 | Axis | 853 (p 61) 854 (p 61) |
| 8/03/2006 | Green Triton | 200,000 | $0.35 | Australian dollars | Bradley Michael Morphew & Kelly Patricia Morphew as tenants in common | 743 | Axis | 855 (p 61) 856 (p 61) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Paul Bernard Fuller & Susan Teresa Fuller ATF PB & ST Fuller Superannation Fund | 100 | Axis | 857 (p 61) 858 (p 61) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Ann M Fricker | 744 | Axis | 859 (p 61) 860 (p 61) |
| 8/03/2006 | Green Triton | 250,000 | $0.35 | Australian dollars | Hershey Nominees Pty Ltd as Trustee for the Jeff Stewart Superannuation Fund | 244 | Axis | 861 (p 61) 862 (p 61) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Michael Zaccaria | 618 | Axis | 863 (p 61) 864 (p 61) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | John Zaccaria | 617 | Axis | 865 (p 62) 866 (p 62) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | G. A. Armstrong Superannuation Pty Ltd ATF G. A. Armstrong Superannuation Fund | 749 | Axis | 867 (p 62) 868 (p 62) |
| 8/03/2006 | Green Triton | 215,000 | $0.35 | Australian dollars | Ian David McKay and Rosalyn Hope McKay ATF I. & R. McKay Superannuation Fund | 750 | Axis | 869 (p 62) 870 (p 62) |
| 8/03/2006 | Green Triton | 290,000 | $0.35 | Australian dollars | Chigwell Pty Ltd | 751 | Axis | 871 (p 62) 872 (p 62) |
| 8/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | Paul Robert Burns | 752 | Axis | 873 (p 62) 874 (p 62) |
| 8/03/2006 | Green Triton | 217,500 | $0.35 | Australian dollars | Gaman Investments P/L ATF The Stavretis Superannuation Fund, Paul Raymond & Annette Margaret Lucas ATF The Lifestyle Superannuation Fund, Paul Raymond & Annette Margaret Lucas and Adam Gary Stavretis | 753 | Axis | 875 (p 62) 876 (p 63) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Dharma Family Trust & Di Camillo Family Trust as tenants in common | 754 | Axis | 877 (p 63) 878 (p 63) |
| 8/03/2006 | Green Triton | 186,000 | $0.35 | Australian dollars | Belinda Clark (45%) & Timothy Malone (27%) & Gregory Smith (27%) as tenants in common | 755 | Axis | 879 (p 63) 880 (p 63) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Pro-Life Superannuation Pty Ltd as Trustee for the Pro-Life Superannuation Fund | 203 | Axis | 881 (p 63) 882 (p 63) |
| 8/03/2006 | Green Triton | 174,300 | $0.35 | Australian dollars | Vincenzo Vallelonga & Ben Kirou & Joseph Saraceni as tenants in common | 756 | Axis | 883 (p 63) 884 (p 63) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Sandra Kaye Kelly & Tamanda Lee Kelly ATF Sandra Kelly Superannuation Fund and Sandra Kaye Kelly as tenants in common | 757 | Axis | 885 (p 63) 886 (p 63) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | CWP Investments Pty Ltd | 758 | Axis | 887 (p 63) 888 (p 64) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | TTF Publications Pty Ltd ATF TTF Publications Superannuation Fund | 759 | Axis | 889 (p 64) 890 (p 64) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Cashgold Investments Pty Ltd ATF Cosby Superannuation Fund and Cashgold Investments Pty Ltd ATF A & M Cosby as tenants in common | 760 | Axis | 891 (p 64) 892 (p 64) |
| 8/03/2006 | Green Triton | 70,000 | $0.35 | Australian dollars | John Zaccaria & Noeleen Zaccari ATF Zaccaria Superannuation Fund | 761 | Axis | 893 (p 64) 894 (p 64) |
| 8/03/2006 | Green Triton | 435,000 | $0.35 | Australian dollars | Thomas Anthony O'Hare & Margaret O'Hare ATF The O'Hare Family Superranuation Fund | 605 | Axis | 895 (p 64) 896 (p 64) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | PJ & TM Baker Pty Ltd ATF PJ & TM Baker Superannuation Fund | 762 | Axis | 897 (p 64) 898 (p 64) |
| 8/03/2006 | Green Triton | 285,000 | $0.35 | Australian dollars | Douglas Rodway Burnett & Jennifer Margaret Burnett ATF DR & JM Burnett Superannuation Fund | 763 | Axis | 899 (p 64) 900 (p 64) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Unicorn Holdings Pty Ltd ATF EJ & J Meyers Superannuation Fund | 764 | Axis | 901 (p 65) 902 (p 65) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Ziziphus Pty Ltd | 8 | Axis | 903 (p 65) 904 (p 65) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Kim Geoffrey Stevens & Bradley Michael Stevens ATF KG Stevens Superannuation Fund 60% and Bradley Michael Stevens & Katie Marie Stevens ATF BM & KM Stevens Superannuation Fund 40% as tenants in common | 765 | Axis | 905 (p 65) 906 (p 65) |
| 8/03/2006 | Green Triton | 72,500 | $0.35 | Australian dollars | Jessie Scally ATF JL Scally Superannuation Fund | 766 | Axis | 907 (p 65) 908 (p 65) |
| 8/03/2006 | Green Triton | 202,000 | $0.35 | Australian dollars | Nicholas Furlan & Camelia Furlan ATF Furlan Family Superannuation Fund (145,000 shares) and Nicholas Furlan & Camelia Furlan (as tenants in common) (27,000 shares) as tenants in common | 767 | Axis | 909 (p 65) 910 (p 65) |
| 8/03/2006 | Green Triton | 72,500 | $0.35 | Australian dollars | John B Dennison ATF The J.B. Dennison Superannuation Fund | 768 | Axis | 911 (p 66) 912 (p 66) |
| 8/03/2006 | Green Triton | 100,000 | $0.35 | Australian dollars | Hifield Investments Pty Ltd ATF SJ & SE Marinoni Superannuation Fund | 769 | Axis | 913 (p 66) 914 (p 66) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Kevin Bruce Fisher & Janice Linda Fisher as tenants in common | 770 | Axis | 915 (p 66) 916 (p 66) |
| 8/03/2006 | Green Triton | 70,000 | $0.35 | Australian dollars | Russel John Perry & Felicity Anne Perry ATF ARJAY Superannuation Fund | 771 | Axis | 917 (p 66) 918 (p 66) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Ross William Archibald & Josephine Mary Archibald ATF The Rollee Superannuation Fund | 772 | Axis | 919 (p 66) 920 (p 66) |
| 8/03/2006 | Green Triton | 145,000 | $0.35 | Australian dollars | Gregory Vernon Ashworth & Carol Ann Ashworth ATF Ashdown Superannuation Fund | 773 | Axis | 921 (p 66) 922 (p 66) |
| 8/03/2006 | Green Triton | 172,000 | $0.35 | Australian dollars | Kim Geoffrey Stevens | 395 | Axis | 923 (p 66) 924 (p 67) |
| 8/03/2006 | Green Triton | 115,000 | $0.35 | Australian dollars | Bradley Michael Stevens | 774 | Axis | 925 (p 67) 926 (p 67) |
| 17/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Mrs Pamela Helen Huntley ATF The Roach Family Trust | 806 | None | 989 (p 69) 990 (p 70) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Peter Alexandrou and Michele Ann Alexandrou | 809 | None | 996 (p 70) 997 (p 70) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Peter Alexandrou acting for the Weasels Syndicate | 810 | None | 998 (p 70) 999 (p 70) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Stephen Robert Balfour | 811 | None | 1000 (p 70) 1001 (p 70) |
| 20/03/2006 | Owston | 200,000 | $0.35 | Australian dollars | B T Burton Investment Trust, G A & K M Burton Family Trust and T C & L K Burton Family Trust | 812 | None | 1002 (p 70) 1003 (p 70) |
| 20/03/2006 | Owston | 171,428 | $0.35 | Australian dollars | Kevin Frederick Carey | 813 | None | 1004 (p 70) 1005 (p 70) |
| 20/03/2006 | Owston | 285,714 | $0.35 | Australian dollars | Wayne Francis Carey | 57 | None | 1006 (p 70) 1007 (p 70) |
| 20/03/2006 | Owston | 200,000 | $0.35 | Australian dollars | Goodthing Enterprises Pty Ltd | 814 | None | 1008 (p 70) 1009 (p 70) |
| 20/03/2006 | Owston | 229,000 | $0.35 | Australian dollars | Anthony George Greven | 114 | None | 1010 (p 70) 1011 (p 70) |
| 20/03/2006 | Owston | 1,500,000 | $0.35 | Australian dollars | Laurel Hargraves Super Fund Pty Ltd | 815 | None | 1012 (p 71) 1013 (p 71) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Hilton's Creek Pty Ltd ATF The James Family Trust | 816 | None | 1014 (p 71) 1015 (p 71) |
| 20/03/2006 | Owston | 215,000 | $0.35 | Australian dollars | Anthony McConville and Norma McConville | 817 | None | 1017 (p 71) 1018 (p 71) |
| 20/03/2006 | Owston | 100,000 | $0.35 | Australian dollars | Jennifer Rebuli | 230 | None | 1019 (p 71) 1020 (p 71) |
| 20/03/2006 | Owston | 275,000 | $0.35 | Australian dollars | Redvision Pty Ltd | 222 | None | 1021 (p 71) 1022 (p 71) |
| 20/03/2006 | Owston | 300,000 | $0.35 | Australian dollars | Rootwo Pty Ltd | 818 | None | 1023 (p 71) 1024 (p 71) |
| 20/03/2006 | Owston | 200,000 | $0.35 | Australian dollars | DR & SA Tiller Holdings Pty Ltd | 819 | None | 1025 (p 71) 1026 (p 71) |
| 20/03/2006 | Owston | 100,000 | $0.35 | Australian dollars | Gregory Alva White | 282 | None | 1027 (p 71) 1028 (p 71) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Schilling Family Trust (25%) & Schilling Super Fund (75%) | 238 | D’Emden | 1029 (p 71) 1030 (p 71) |
| 20/03/2006 | Owston | 200,000 | $0.35 | Australian dollars | Brendan Moore Superannuation Fund | 820 | D’Emden | 1031 (p 71) 1032 (p 71) |
| 20/03/2006 | Owston | 258,000 | $0.35 | Australian dollars | 212A Syndicate (Brendan Moore P/L, Brendan B.M. Moore, Denis R Harcourt, Gary L Cumberbatch, Mark T Jones, Benjamin R Squires, Henry E Rybak, Gail D Pollard, Kay E Dillon, Mark G Daniels, David E Bird | 821 | D’Emden | 1033 (p 71) 1034 (p 72) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Brendan Moore Pty Ltd and Angela Jane Ockenden | 822 | D’Emden | 1035 (p 72) 1036 (p 72) |
| 20/03/2006 | Owston | 15,000 | $0.35 | Australian dollars | R.A. Curtis ATF The Francesca Beneficial Trust | 823 | D’Emden | 1037 (p 72) 1038 (p 72) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Adrian and Diane Gray | 824 | D’Emden | 1039 (p 72) 1040 (p 72) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Plutues (No. 164) Pty Ltd | 195 | D’Emden | 1041 (p 72) 1042 (p 72) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Kathryn Sidney Saul and Kathryn Louise Spaulding | 825 | D’Emden | 1043 (p 72) 1044 (p 72) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | David John Page and Lenice Cheryl Page | 826 | D’Emden | 1045 (p 72) 1046 (p 72) |
| 20/03/2006 | Owston | 192,858 | $0.35 | Australian dollars | Radsby Pty Ltd ATF the R & J Investment Trust and David Dilger ATF the Dilger Family Trust and Fil Carluccio | 827 | D’Emden | 1047 (p 72) 1048 (p 72) |
| 20/03/2006 | Green Triton | 50,000 | $0.35 | Australian dollars | Gregory Bruce Wilson, Marlene Joyce Wilson & Grant Gregory Wilson as tenants-in-common in equal proportions | 425 | D’Emden | 1049 (p 72) 1050 (p 72) |
| 20/03/2006 | Owston | 348,570 | $0.35 | Australian dollars | G L McLeod and or nominees, A J McLeod and or nominees, R N Caple, Eden Leary, G L McLeod Pty Ltd Staff Super Fund | 828 | D’Emden | 1051 (p 72) 1052 (p 73) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Anthony P N Wijesekera, Nisha Rajah, Shyamala Rajah, Sally Wynne, Brenden Wynne and Wynne Superannuation Fund | 829 | D’Emden | 1053 (p 73) 1054 (p 73) |
| 20/03/2006 | Owston | 200,000 | $0.35 | Australian dollars | Craigleigh Pty Limited (125,000 shares) & Taringa Waters Pty Ltd ATF Bastian Retirement Fund (75,000 shares) | 830 | D’Emden | 1055 (p 73) 1056 (p 73) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | JJDA Investments Pty Ltd | 831 | None | 1057 (p 73) 1058 (p 73) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Abilita Pty Ltd (Abilita Settlement Account) | 832 | None | 1059 (p 73) 1060 (p 73) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Layben Pty Ltd ATF O'Malley Family Trust | 834 | None | 1063 (p 73) 1064 (p 73) |
| 20/03/2006 | Owston | 650,000 | $0.35 | Australian dollars | Abilita Pty Ltd (Firepower Unit Trust) | 833 | None | 1065 (p 73) 1066 (p 73) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Joe Nowak Snr (40%) & Joseph Anthony Nowak Jnr (20%) & Anthony Nowak (20%) & Michael James Nowak (20%) | 836 | None | 1072 (p 74) 1071 (p 74) |
| 20/03/2006 | Owston | 150,000 | $0.35 | Australian dollars | Bruce James Kelly & Jeremy Paul Dray | 837 | None | 1074 (p 74) 1075 (p 74) |
| 21/03/2006 | Owston | 172,200 | $0.35 | Australian dollars | Mark Dunsford | 83 | D’Emden | 1078 (p 74) 1079 (p 74) |
| 21/03/2006 | Owston | 207,144 | $0.35 | Australian dollars | Madra Pty Ltd ATF M & S Saxby Family Trust and Angela Susan Robinson and MP & SP Powe Family Trust | 839 | D’Emden | 1080 (p 74) 1081 (p 74) |
| 28/03/2006 | Green Triton | 150,000 | $0.35 | Australian dollars | Manikato Financial Services Pty Ltd | 841 | None | 1084 (p 74) 1085 (p 74) |
| 5/04/2006 | Owston | 285,714 | $0.35 | Australian dollars | Richard Hartman | 846 | None | 1119 (p 76) 1120 (p 76) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | QTEC Pty Ltd ATF the QTEC Trust | 848 | Tony Prentice | 1126 (p 76) 1127 (p 76) |
| 11/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Gary Vincent Coleman & Dorothy Josephine Coleman as tenants in common | 849 | Tony Prentice | 1128 (p 76) 1129 (p 76) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Gary Vincent Coleman, Dorothy Josephine Coleman, Justin Andrew Coleman, Michael Robert Coleman & Tony John Coleman | 850 | Tony Prentice | 1130 (p 76) 1131 (p 76) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Kerry Anne Marshall & Janice M.E. Swan | 851 | Tony Prentice | 1132 (p 76) 1133 (p 76) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | GW & SE McGill Superannuation | 852 | Tony Prentice | 1134 (p 76) 1135 (p 76) |
| 11/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | North Australia Investments Pty Ltd | 853 | None | 1136 (p 76) 1137 (p 76) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | North Australia Investments Pty Ltd | 853 | Tony Prentice | 1138 (p 76) 1139 (p 76) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Meningie Property Rentals Pty Ltd ATF the Rasheed Family Trust | 854 | Tony Prentice | 1140 (p 77) 1141 (p 77) |
| 11/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Anthony Charles Pearce & Samantha Julie Miles ATF ISAS Superannuation Fund | 855 | Tony Prentice | 1142 (p 77) 1143 (p 77) |
| 12/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Owen James Swan & Jane Alison Swan | 856 | Tony Prentice | 1144 (p 77) 1145 (p 77) |
| 12/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Beverley Eileen Thorpe & Kate Eileen Thorpe | 857 | Tony Prentice | 1146 (p 77) 1147 (p 77) |
| 12/04/2006 | Owston | 300,000 | $0.35 | Australian dollars | AJ Prentice Pty Ltd | 208 | Tony Prentice | 1148 (p 77) 1149 (p 77) |
| 12/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Brooker and Co. Trust | 27 | None | 1150 (p 77) 1151 (p 77) |
| 12/04/2006 | Owston | 171,428 | $0.35 | Australian dollars | M Drage, J Hardie & P Barrett ATF The Perspective Investment Trust | 859 | None | 1152 (p 77) 1153 (p 77) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Stephen Wayne Birbeck | 860 | None | 1154 (p 77) 1155 (p 77) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Peter G Bradley Family Trust | 861 | None | 1156 (p 77) 1157 (p 77) |
| 19/04/2006 | Seaswan | 60,000 | $0.50 | Australian dollars | B T Burton Investment Trust, G A & K M Burton Family Trust and T C & L K Burton Family Trust | 862 | None | 1158 (p 78) 1159 (p 78) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Douglas Malcolm Chapman | 863 | None | 1160 (p 78) 1161 (p 78) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Larissa Crouch | 864 | None | 1162 (p 78) 1163 (p 78) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Tim d'Emden & Associates Pty Ltd | 865 | None | 1164 (p 78) 1165 (p 78) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Michael J Doughty | 866 | None | 1166 (p 78) 1167 (p 78) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Nobody Promotions Pty Ltd | 867 | None | 1168 (p 78) 1169 (p 78) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Michael David Fletcher | 868 | None | 1170 (p 78) 1171 (p 78) |
| 19/04/2006 | Seaswan | 10,000 | $0.50 | Australian dollars | Poynter Hargraves Financial Consultants Pty Ltd | 880 | None | 1172 (p 78) 1173 (p 78) |
| 19/04/2006 | Seaswan | 15,000 | $0.50 | Australian dollars | Kelly Ann Pyman | 881 | None | 1174 (p 78) 1175 (p 78) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Brent C Reilly | 882 | None | 1176 (p 78) 1177 (p 78) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Jodie Lorraine Rowe | 883 | None | 1178 (p 78) 1179 (p 78) |
| 19/04/2006 | Seaswan | 20,000 | $0.50 | Australian dollars | Adam Schilling | 884 | D'Emden | 1180 (p 78) 1181 (p 78) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Solero Nominees Pty Ltd ATF The Solero Asset Trust | 885 | None | 1182 (p 78) 1183 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Louise Helen Souter | 886 | None | 1184 (p 79) 1185 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Sugars Investments Pty Ltd | 888 | None | 1186 (p 79) 1187 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Studart Pty Ltd ATF The Tull Family Trust | 887 | None | 1188 (p 79) 1189 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Stewart Wardlaw Superannuation Fund | 889 | None | 1190 (p 79) 1191 (p 79) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Scott Welsh | 890 | None | 1192 (p 79) 1193 (p 79) |
| 19/04/2006 | Seaswan | 30,000 | $0.50 | Australian dollars | Belinda Lee Wood | 891 | None | 1194 (p 79) 1195 (p 79) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Nicolino and Marisa Frances Gileno | 869 | None | 1196 (p 79) 1197 (p 79) |
| 19/04/2006 | Seaswan | 200,000 | $0.50 | Australian dollars | Glaistier Super Fund | 870 | None | 1198 (p 79) 1199 (p 79) |
| 19/04/2006 | Seaswan | 30,000 | $0.50 | Australian dollars | Josephine M M Goodier | 871 | None | 1200 (p 79) 1201 (p 79) |
| 19/04/2006 | Seaswan | 60,000 | $0.50 | Australian dollars | Lisa J M Goodier | 872 | None | 1202 (p 79) 1203 (p 79) |
| 19/04/2006 | Seaswan | 60,000 | $0.50 | Australian dollars | Stephen John Goodier | 873 | None | 1204 (p 79) 1205 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Mark Charles Hale | 874 | None | 1206 (p 79) 1207 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Hizeda Pty Ltd ATF The Noel Titter Family Trust | 875 | None | 1208 (p 79) 1209 (p 79) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Anne & Michael Hardinge as tenants-in-common in equal proportions | 119 | None | 1210 (p 80) 1211 (p 80) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Joric Pty Ltd ATF The Trusso Family Trust | 876 | None | 1212 (p 80) 1213 (p 80) |
| 19/04/2006 | Seaswan | 80,000 | $0.50 | Australian dollars | Ballaboy Pty Ltd ATF The McLeod Family Trust | 878 | None | 1214 (p 80) 1215 (p 80) |
| 19/04/2006 | Seaswan | 40,000 | $0.50 | Australian dollars | Janet Kaye Powell | 879 | None | 1216 (p 80) 1217 (p 80) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Sea World Pty Ltd ATF The Fam Superannuation Fund | 892 | None | 1218 (p 80) 1219 (p 80) |
| 19/04/2006 | Seaswan | 100,000 | $0.50 | Australian dollars | Simon John Arthur Youl and Catherine Joan Youl | 893 | None | 1220 (p 80) 1221 (p 80) |
| 19/04/2006 | Green Triton | 200,000 | $0.10 | Australian dollars | Zorica McCarthy | 894 | None | 1222 (p 80) 1223 (p 80) |
| 19/04/2006 | Green Triton | 5,000 | $0.50 | Australian dollars | Natasha McCarthy | 895 | None | 1224 (p 80) 1225 (p 80) |
| 19/04/2006 | Green Triton | 5,000 | $0.50 | Australian dollars | Danielle McCarthy | 896 | None | 1226 (p 80) 1227 (p 80) |
| 26/04/2006 | Green Triton | 250,000 | $0.35 | Australian dollars | Total Assets International Limited | 260 | None | 1232 (p 80) 1233 (p 80) |
| 26/04/2006 | Owston | 135,000 | $0.35 | Australian dollars | R.A. Curtis ATF The Francesca Beneficial Trust | 823 | D’Emden | 1236 (p 81) 1237 (p 81) |
| 26/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Astar Pty Ltd ATF The Schelling Family Trust & Matti Urvet & Yvonne Urvet | 901 | None | 1238 (p 81) 1239 (p 81) |
| 26/04/2006 | Owston | 150,000 | $0.35 | Australian dollars | Studico Pty Ltd | 902 | None | 1240 (p 81) 1241 (p 81) |
| 26/04/2006 | Owston | 30,000 | $0.35 | Australian dollars | Carlo B. Roberts | 903 | None | 1242 (p 81) 1243 (p 81) |
| 1/05/2006 | Owston | 150,000 | $0.35 | Australian dollars | Adam Schilling | 884 | None | 1244 (p 81) 1245 (p 81) |
| 12/05/2006 | Owston | 150,000 | $0.35 | Australian dollars | Alan D Massie | 163 | None | 1260 (p 82) 1261 (p 82) |
| 12/05/2006 | Owston | 300,000 | $0.35 | Australian dollars | James W. Larson and/or Greta A. Larson | 910 | None | 1262 (p 82) 1263 (p 82) |
| 22/05/2006 | Firepower Investments | 29,000 | $1.35 | Australian dollars | Susan Joy Ward | 276 | Axis | 1276 (p 82) 1277 (p 82) |
| 22/05/2006 | Firepower Investments | 70,000 | $1.35 | Australian dollars | Rondel Pty Ltd | 234 | Axis | 1278 (p 83) 1279 (p 83) |
| 22/05/2006 | Firepower Investments | 75,000 | $1.35 | Australian dollars | Deirdre Anne Clark & Gregory Allen Smith as tenants-in-common in equal proportions | 75 | Axis | 1280 (p 83) 1281 (p 83) |
| 22/05/2006 | Firepower Investments | 75,000 | $1.35 | Australian dollars | Alana Jayne Kay | 914 | Axis | 1282 (p 83) 1283 (p 83) |
| 22/05/2006 | Firepower Investments | 7,500 | $1.35 | Australian dollars | Angeline Karelle Barker | 611 | Axis | 1284 (p 83) 1285 (p 83) |
| 22/05/2006 | Firepower Investments | 7,500 | $1.35 | Australian dollars | Paul Douglas Nicholson | 610 | Axis | 1286 (p 83) 1287 (p 83) |
| 22/05/2006 | Firepower Investments | 15,000 | $1.35 | Australian dollars | Robert John Brennan & Frances Therese Brennan ATF The Olldar Trust | 918 | Axis | 1288 (p 83) 1289 (p 83) |
| 22/05/2006 | Firepower Investments | 12,000 | $1.35 | Australian dollars | Keith John & Christine Carol Bakker ATF Bakker Superannuation Fund | 919 | Axis | 1290 (p 83) 1291 (p 84) |
| 22/05/2006 | Firepower Investments | 100,000 | $1.35 | Australian dollars | TTF Publications Pty Ltd ATF TTF Publications Superannuation Fund | 759 | Axis | 1292 (p 84) 1293 (p 84) |
| 22/05/2006 | Firepower Investments | 75,000 | $1.38 | Australian dollars | Geoffrey Ronald Allan and Nola Janice Allan ATF The Teret Superannuation Fund | 735 | Axis | 1294 (p 84) 1295 (p 84) |
| 22/05/2006 | Firepower Investments | 25,000 | $1.35 | Australian dollars | Michael Raymond Davis & Lorraine Aurora Davis ATF The MR & LA Davis Superannuation Fund | 920 | Axis | 1296 (p 84) 1297 (p 84) |
| 22/05/2006 | Firepower Investments | 40,000 | $1.35 | Australian dollars | Geoffrey Howard Trevenen & Tanya Shelley Trevenen ATF Toad Lodge Superannuation Fund | 915 | Axis | 1298 (p 84) 1299 (p 84) |
| 22/05/2006 | Firepower Investments | 75,000 | $1.35 | Australian dollars | Stephen & Olga Monk ATF SOM Superannuation Fund | 922 | Axis | 1300 (p 84) 1301 (p 84) |
| 22/05/2006 | Firepower Investments | 22,000 | $1.35 | Australian dollars | Shannon Carter | 923 | Axis | 1302 (p 84) 1303 (p 84) |
| 22/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | Central West Nominees Pty Ltd ATF Keywest Superannuation Fund (60%) & Britannia Enterprises Pty Ltd ATF Keywest Trust (40%) as tenants in common | 924 | Axis | 1304 (p 85) 1305 (p 85) |
| 22/05/2006 | Firepower Investments | 10,000 | $1.35 | Australian dollars | Gaile Lee Chittleborough | 925 | Axis | 1306 (p 85) 1307 (p 85) |
| 22/05/2006 | Firepower Investments | 1,000,000 | $1.35 | Australian dollars | Badah Pty Ltd ATF The Badah Trust | 921 | Axis | 1308 (p 85) 1309 (p 85) |
| 24/05/2006 | Firepower Investments | 11,000 | $1.35 | Australian dollars | Anne Pryor | 926 | Axis | 1310 (p 85) 1311 (p 85) |
| 24/05/2006 | Firepower Investments | 14,000 | $1.35 | Australian dollars | Frederick John & Eva Marian Bock | 927 | Axis | 1312 (p 85) 1313 (p 85) |
| 24/05/2006 | Firepower Investments | 40,000 | $1.35 | Australian dollars | Geoffrey Howard Trevenen & Tanya Shelley Trevenen ATF Toad Lodge Superannuation Fund | 915 | Axis | 1314 (p 85) 1315 (p 85) |
| 24/05/2006 | Firepower Investments | 30,000 | $1.35 | Australian dollars | Brenton James Walkemeyer | 928 | Axis | 1316 (p 86) 1317 (p 86) |
| 24/05/2006 | Firepower Investments | 75,000 | $1.35 | Australian dollars | Pro-Life Superannuation Pty Ltd as Trustee for the Pro-Life Superannuation Fund | 203 | Axis | 1318 (p 86) 1319 (p 86) |
| 24/05/2006 | Firepower Investments | 75,000 | $1.35 | Australian dollars | Pro-Life Investments Pty Ltd as Trustee for the Pro-Life Investment Trust | 375 | Axis | 1320 (p 86) 1321 (p 86) |
| 24/05/2006 | Firepower Investments | 10,000 | $1.35 | Australian dollars | Rochelle Alyce & Jarryd Timothy Singleton | 929 | Axis | 1322 (p 86) 1323 (p 86) |
| 24/05/2006 | Firepower Investments | 15,000 | $1.35 | Australian dollars | Scott Wayne Pepper & Rochelle Alyce Singleton as tenants in common in equal proportions | 930 | Axis | 1324 (p 86) 1325 (p 86) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | Pamela Mary Crawford | 76 | Axis | 1326 (p 86) 1327 (p 86) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | John Corran Crawford | 312 | Axis | 1328 (p 86) 1329 (p 87) |
| 24/05/2006 | Firepower Investments | 10,000 | $1.35 | Australian dollars | Victoria Jane Crawford | 931 | Axis | 1330 (p 87) 1331 (p 87) |
| 24/05/2006 | Firepower Investments | 37,000 | $1.35 | Australian dollars | Guy Royle | 932 | Axis | 1332 (p 87) 1333 (p 87) |
| 24/05/2006 | Firepower Investments | 37,000 | $1.35 | Australian dollars | Patricia Wendy Royle | 933 | Axis | 1334 (p 87) 1335 (p 87) |
| 24/05/2006 | Firepower Investments | 37,000 | $1.35 | Australian dollars | Christopher James Royle | 934 | Axis | 1336 (p 87) 1337 (p 87) |
| 24/05/2006 | Firepower Investments | 37,000 | $1.35 | Australian dollars | James William Royle | 935 | Axis | 1338 (p 87) 1339 (p 87) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | Angelo Anthony Telenta & Dianne Parker ATF The Ditel Superannuation Fund | 936 | Axis | 1340 (p 87) 1341 (p 87) |
| 24/05/2006 | Firepower Investments | 14,492 | $1.35 | Australian dollars | Jeffrey Michael O'Brien & Tania Louise O'Brien | 937 | Axis | 1342 (p 88) 1343 (p 88) |
| 24/05/2006 | Firepower Investments | 20,000 | $1.35 | Australian dollars | Kenneth Ian Gummow | 938 | Axis | 1344 (p 88) 1345 (p 88) |
| 24/05/2006 | Firepower Investments | 22,000 | $1.35 | Australian dollars | Cher Kristy Keary | 939 | Axis | 1346 (p 88) 1347 (p 88) |
| 24/05/2006 | Firepower Investments | 35,000 | $1.35 | Australian dollars | Luigi & Miriam Giura as Trustee for The Giura Superannuation Fund | 940 | Axis | 1348 (p 88) 1349 (p 88) |
| 24/05/2006 | Firepower Investments | 21,400 | $1.35 | Australian dollars | Bryan William Davies and Alberta Femmigje Caroline Davies ATF Davies Superannuation Fund | 724 | Axis | 1350 (p 88) 1351 (p 88) |
| 24/05/2006 | Firepower Investments | 36,500 | $1.35 | Australian dollars | Peter John Connolly and Frances Mary Connolly ATF P & F Connolly Superannuation Fund | 720 | Axis | 1352 (p 88) 1353 (p 88) |
| 24/05/2006 | Firepower Investments | 15,000 | $1.35 | Australian dollars | Melody Wilson (33%) & Belinda Clark (67%) | 943 | Axis | 1354 (p 88) 1355 (p 89) |
| 24/05/2006 | Firepower Investments | 22,800 | $1.35 | Australian dollars | Maria Isabel Vear | 727 | Axis | 1356 (p 89) 1357 (p 89) |
| 24/05/2006 | Firepower Investments | 22,500 | $1.35 | Australian dollars | Alicia Dione Keary | 945 | Axis | 1360 (p 89) 1361 (p 89) |
| 24/05/2006 | Firepower Investments | 20,000 | $1.35 | Australian dollars | Patrick Martin Garratt & Kara Teresa Garratt ATF Mayflower Superannuation Fund | 946 | Axis | 1362 (p 89) 1363 (p 89) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | W. P. Cooke Family Trust | 944 | Axis | 1364 (p 89) 1365 (p 89) |
| 24/05/2006 | Firepower Investments | 154,000 | $1.30 | Australian dollars | Pejean Pty Ltd ATF RMZ Superannuation Fund | 664 | Axis | 1366 (p 89) 1367 (p 89) |
| 24/05/2006 | Firepower Investments | 15,500 | $1.35 | Australian dollars | Ray Fair & Kelly Fair as tenants in common | 947 | Axis | 1368 (p 89) 1369 (p 90) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | Nicholas Peter Cooke & Andrew William Cooke ATF Nick Cooke Superannuation Fund | 648 | Axis | 1370 (p 90) 1371 (p 90) |
| 24/05/2006 | Firepower Investments | 45,000 | $1.35 | Australian dollars | Brenton James Walkemeyer & John Corran Crawford ATF Brenton James Walkemeyer Superannuation Fund | 942 | Axis | 1372 (p 90) 1373 (p 90) |
| 24/05/2006 | Firepower Investments | 48,000 | $1.35 | Australian dollars | Darryl John Edmondson & Ludmilla Elizabeth Edmondson ATF DJ & LE Edmondson Superannuation Fund | 740 | Axis | 1374 (p 90) 1375 (p 90) |
| 24/05/2006 | Firepower Investments | 200,000 | $1.35 | Australian dollars | Rory Graham Anderson | 729 | Axis | 1376 (p 90) 1377 (p 90) |
| 24/05/2006 | Firepower Investments | 70,000 | $1.35 | Australian dollars | Paul Douglas Nicholson & Angeline Karelle Barker ATF The Nicholson Superannuation Fund | 609 | Axis | 1378 (p 90) 1379 (p 90) |
| 24/05/2006 | Green Triton | 6,000,000 | $1.35 | Australian dollars | Badah Pty Ltd ATF The Badah Trust | 921 | Axis | 1380 (p 90) 1381 (p 90) |
| 24/05/2006 | Firepower Investments | 25,000 | $1.35 | Australian dollars | Keith Ronald Moir & Edna Susan Moir | 916 | Axis | 1382 (p 91) 1383 (p 91) |
| 24/05/2006 | Firepower Investments | 25,000 | $1.35 | Australian dollars | Dalrio Pty Ltd ATF The Moir Family Super Fund | 917 | Axis | 1384 (p 91) 1385 (p 91) |
| 24/05/2006 | Firepower Investments | 25,000 | $1.35 | Australian dollars | Trudy Leigh Haddleton | 949 | Axis | 1386 (p 91) 1387 (p 91) |
| 24/05/2006 | Firepower Investments | 200,000 | $1.35 | Australian dollars | Haddleton Brindley Real Estate Pty Ltd ATF The Haddleton Brindley Superannuation Fund | 951 | Axis | 1388 (p 91) 1389 (p 91) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | Raymond David Hancock | 952 | Axis | 1390 (p 91) 1391 (p 91) |
| 24/05/2006 | Firepower Investments | 20,000 | $1.35 | Australian dollars | G.T. & J.M. Mills | 953 | Axis | 1392 (p 91) 1393 (p 91) |
| 24/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | Andrew William Cooke | 954 | Axis | 1394 (p 91) 1395 (p 92) |
| 26/05/2006 | Firepower Investments | 7,650 | $1.35 | Australian dollars | Jeffrey Bendall | 961 | Axis | 1410 (p 92) 1411 (p 93) |
| 26/05/2006 | Sattvic | 38,255 | $1.35 | Australian dollars | E Kemp & J Jansen ATF Chrystobel Superannuation Fund | 960 | None | 1414 (p 93) 1415 (p 93) |
| 26/05/2006 | Firepower Investments | 3,700 | $1.38 | Australian dollars | Ross George Morgan | 962 | Axis | 1418 (p 93) 1419 (p 93) |
| 26/05/2006 | Firepower Investments | 65,000 | $1.30 | Australian dollars | Lim Ching Seng | 963 | Axis | 1420 (p 93) 1422 (p 93) |
| 26/05/2006 | Firepower Investments | 28,000 | $1.30 | Australian dollars | Unicorn Holdings Pty Ltd ATF EJ & J Meyers Superannuation Fund | 764 | Axis | 1423 (p 93) 1424 (p 93) |
| 26/05/2006 | Firepower Investments | 15,500 | $1.30 | Australian dollars | Christine Phillips | 964 | Axis | 1425 (p 93) 1426 (p 94) |
| 26/05/2006 | Firepower Investments | 27,500 | $1.30 | Australian dollars | Carol Ann Ashworth | 965 | Axis | 1427 (p 94) 1428 (p 94) |
| 26/05/2006 | Firepower Investments | 44,000 | $1.38 | Australian dollars | Deborah Susanne Barry | 966 | Axis | 1429 (p 94) 1430 (p 94) |
| 26/05/2006 | Firepower Investments | 29,000 | $1.38 | Australian dollars | Alan & Deborah Barry ATF Albatross Superannuation Fund | 967 | Axis | 1431 (p 94) 1432 (p 94) |
| 26/05/2006 | Firepower Investments | 20,000 | $1.30 | Australian dollars | John Anthony Lazarov & Joseph Saraceni as tenants in common | 969 | Axis | 1433 (p 94) 1434 (p 94) |
| 29/05/2006 | Firepower Investments | 50,000 | $1.35 | Australian dollars | R. Parker No. 2 Superannuation Fund No. 2 | 971 | Axis | 1437 (p 94) 1438 (p 94) |
| 29/05/2006 | Firepower Investments | 10,000 | $1.35 | Australian dollars | Marita Nowak | 972 | Axis | 1439 (p 94) 1440 (p 95) |
| 29/05/2006 | Firepower Investments | 38,250 | $1.35 | Australian dollars | Meegan Anne Vittorio | 973 | Axis | 1441 (p 95) 1442 (p 95) |
| 29/05/2006 | Firepower Investments | 45,000 | $1.30 | Australian dollars | Reginald Thomas Ferguson | 974 | Axis | 1443 (p 95) 1444 (p 95) |
| 30/05/2006 | Firepower Investments | 12,240 | $1.35 | Australian dollars | Angela J Ockenden | 975 | Axis | 1445 (p 95) 1446 (p 95) |
| 30/05/2006 | Firepower Investments | 43,000 | $1.35 | Australian dollars | C Vanburke and/or Nominee, John & Hazel McLeod, Gibbs Family Trust, Anthony McLeod and/or nominee, and G L McLeod and/or nominee | 976 | Axis | 1447 (p 95) 1448 (p 95) |
| 30/05/2006 | Firepower Investments | 82,000 | $1.35 | Australian dollars | Maximus Corporation Pty Ltd ATF Wynne Family Trust and Mary-Lou Kenealy | 977 | Axis | 1449 (p 95) 1450 (p 95) |
| 30/05/2006 | Firepower Investments | 20,000 | $1.30 | Australian dollars | Graeme John Kenny | 978 | Axis | 1451 (p 95) 1452 (p 95) |
| 30/05/2006 | Firepower Investments | 76,500 | $1.00 | United States dollars | Manuka Superannuation Fund | 182 | Axis | 1453 (p 96) 1454 (p 96) |
| 6/06/2006 | Firepower Investments | 22,000 | $1.31 | Australian dollars | Carol Ann Ashworth & Gregory Vernon Ashworth | 773 | Axis | 1475 (p 97) 1476 (p 97) |
SUMMARY OF OFFERS
| Investor | Vendor | Date of offer | No of shares | Price ($) | Broker | Statement of claim (paras) | Affidavit evidence | Other evidence |
| Geoffrey Ronald & Nola Janice Allan (atf Teret Super Fund) | Green Triton | 21/9/05 | 145,000 | 50,750 (0.35 each) | Axis/Ward | 51 – 55 | Geoffrey Ronald Allan, 26/6/08 (CB1/23) paras 13-22; exs GRA 4, 5, 6, 7 Nola Janice Allan 25/2/10 (CB1/31A) paras 16-20; exs NJA 3, 4, 5 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 837, 838 (p 59) | Bank documents for telegraphic transfer (CB4/53) Share registry (CB5/172), shareholder ID 735 |
| Geoffrey Ronald & Nola Janice Allan (atf Teret Super Fund) | Firepower Investments | 5/4/06 | 75,000 | 103,500 (1.38 each) | Axis/Ward | 56 – 60 | Geoffrey Ronald Allan, 26/6/08 (CB1/23) paras 23-30; exs GRA 8, 9, 10 Nola Janice Allan 25/2/10 (CB1/31A) paras 21-29; exs NJA 6, 7, 8 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1294, 1295 (p 84) | Share registry (CB5/172), shareholder ID 735 |
| Carol Ann & Gregory Vernon Ashworth (atf Ashdown Super Fund) | Green Triton | 9-10/05 | 145,000 | 50,750 (0.35 each) | Axis/Ward, Vallelonga | 62 – 67 | Carol Ann Ashworth 23/4/08 (CB1/9) paras 4-12; exs CAA 1, 2, 3, 4, 5 Gregory Vernon Ashworth 23/4/08 (CB1/10) paras 6-13; exs GVA 1, 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 921, 922 (p 66) | Email Ward to C Ashworth 21/9/05 (CB4/48) Share registry (CB5/172), shareholder ID 773 |
| Carol Ann Ashworth | Firepower Investments | 3/5/06 | 27,500 | 35,750 (1.30 each) | Axis/Ward, Vallelonga | 68 – 72 | Carol Ann Ashworth 23/4/08 (CB1/9) paras 13-21; exs CAA 6, 7, 8, 9 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1427, 1428 (p 94) | Share registry (CB5/172), shareholder ID 965 |
| Carol Ann & Gregory Vernon Ashworth (atf Ashdown Super Fund) | Firepower Investments | 17/5/06 | 22,000 | 28,820 (1.31 each) | Axis/Ward, Vallelonga | 73 - 77 | Carol Ann Ashworth 23/4/08 (CB1/9) paras 22-29; exs CAA 10, 11, 12, 13 Gregory Vernon Ashworth 23/4/08 (CB1/10) paras 14-15; exs GVA 3 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1475, 1476 (p 97) | Email Vallelonga to C Ashworth 17/5/06 (CB4/48) Share registry (CB5/172), shareholder ID 773 |
| Pejean Pty Ltd (atf RMZ Super Fund) | Owston | 24/1/06 | 300,000 | 150,000 (0.50 each) | Axis/Ward, Vallelonga | 79 – 83 | Robin Ronald Baird 22/4/08 (CB1/8) paras 29-38; exs RRB 8, 9, 10 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 609, 610 (p 53) | Share registry (CB5/172), shareholder ID 664 |
| Pejean Pty Ltd (atf RMZ Super Fund) | Firepower Investments | 4/5/06 | 154,000 | 200,200 (1.30 each) | Axis/Ward, Vallelonga | 84 - 89 | Robin Ronald Baird 22/4/08 (CB1/8) paras 39-46; exs RRB 12, 13, 14, 16 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1366, 1367 (p 89) | Share registry (CB5/172), shareholder ID 664 |
| Shannon Farrell Carter | Firepower Investments | 3/4/06 | 22,000 | 29,700 (1.35 each) | Axis/Ward, Vallelonga | 91 – 96 | Shannon Farrell Carter 30/4/08 (CB1/17) paras 2-24; exs SFC 2, 3, 4, 5, 7 Benjamin Carter 30/4/08 (CB1/16) paras 2-15 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1302, 1303 (p 84) | Share registry (CB5/172), shareholder ID 923 |
| Angela Jones & Penny Buchan (atf A Jones Super Fund) | Owston | 22/11/05 | 40,000 | 20,000 (0.50 each) | Axis/Ward, Vallelonga | 117 - 122 | Angela Janet May Jones 1/7/08 (CB1/25) paras 5-17; exs AJMJ 1, 2, 3 Penny Therese Buchan 1/7/08 (CB1/24) paras 5-13; exs PTB 1, 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 511, 512 (p 37) | Share registry (CB5/172), shareholder ID 620 |
| Angela Jones | Owston | 22/11/05 | 10,000 | 5,000 (0.50 each) | Axis/Ward | 117 - 122 | Angela Janet May Jones 1/7/08 (CB1/25) paras 5-17; exs AJMJ 1, 4 Penny Therese Buchan 1/7/08 (CB1/24) paras 5-13; ex PTB 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 511, 512 (p 37) | Share registry (CB5/172), shareholder ID 620 |
| Penny Buchan & Angela Jones (atf P Buchan Super Fund) | Owston | 22/11/05 | 20,000 | 10,000 (0.50 each) | Axis/Ward | 123 - 127 | Penny Therese Buchan 1/7/08 (CB1/24) paras 14-21; exs PTB 4, 5, 6 [NB exhibits are wrongly numbered in text of affidavit] Angela Janet May Jones 1/7/08 (CB1/25) paras 18-22; ex AJMJ 5 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 561, 562 (p 41) | Share registry (CB5/172), shareholder ID 643 |
| Nicholas Joseph & Camelia Furlan | Green Triton | 9-10/05 | 57,000 | 19,950 (0.35 each) | Axis/Ward, Vallelonga | 129 - 134 | Nicholas Joseph Furlan 13/6/08 (CB1/21) paras 6-14; exs NJF 1, 2, 3, 4 Camelia Furlan 25/8/10 (CB1/22); paras 5-8; exs CF1, 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 909, 910 (p 65) | Vallelonga email 5/10/05 (CB4/52) Share registry (CB5/172), shareholder ID 767 |
| Nicholas Joseph & Camelia Furlan (atf Furlan Super Fund) | Green Triton | ‘ 9-10/05 | 145,000 | 50,750 (0.35 each) | Axis/Ward, Vallelonga | 129 - 134 | Nicholas Joseph Furlan 13/6/08 (CB1/21) paras 6-14; exs NJF 1, 2, 3, 4 Camelia Furlan 25/8/10 (CB1/22); paras 5-8; exs CF 1, 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 909, 910 (p 65) | Vallelonga email 5/10/05 & Super Fund cheque (CB4/52) Share registry (CB5/172), shareholder ID 767 |
| Nicholas Joseph & Camelia Furlan (atf Furlan Super Fund) | Owston | ‘ 12/05 | 60,000 | 30,000 (0.50 each) | Axis/Ward, Vallelonga | 135 - 140 | Nicholas Joseph Furlan 13/6/08 (CB1/21) paras 16-20; exs NJF 5, 6 Camelia Furlan 25/8/10 (CB1/22); paras 9-11; ex CF 3 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 589, 590 (p 51) | Share registry (CB5/172), shareholder ID 654 |
| Darryl John & Ludmilla Elizabeth Edmondson (atf Edmondson Super Fund) | Green Triton | 8-9/05 | 290,000 | 101,500 (0.35 each) | Axis/Ward | 141 - 146 | Darryl John Edmondson 24/4/08 (CB1/14) paras 7-19; exs DJE 1, 2 ,3 ,4, 5 Ludmilla Elizabeth Edmondson 24/4/08 (CB1/13) paras 3-6; ex LEE 1 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 849, 850 (P 60) | Telegraphic transfer documents (4/51) Share registry (CB5/172), shareholder ID 740 |
| Darryl John & Ludmilla Elizabeth Edmondson (atf Edmondson Super Fund) | Firepower Investments | 4/06 | 48,000 | 64,800 (1.35 each) | Axis/Ward | 147 - 152 | Darryl John Edmondson 24/4/08 (CB1/14) paras 20-30; exs DJE 6, 7, 8, 9, 10 Ludmilla Elizabeth Edmondson 24/4/08 (CB1/13) paras 7, 8; ex LEE 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1374, 1375 (p 90) | Share registry (CB5/172), shareholder ID 740 |
| Nicolino & Marisa Gileno | Seaswan | 1/06 | 40,000 | 20,000 (0.50 each) | 160 – 164 | Nicolino Gileno 24/4/08 (CB1/15) paras 2-11; exs NG 1, 2 Antonio Trusso 15/1/09 (CB1/29) paras 7-10, 12, 15 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1196, 1197 (p 79) | Cheque & bank statement (CB5/115) Email correspondence (CB5/108, 121, 138) Share registry (CB5/172), shareholder ID 869 | |
| Ronald Geoffrey & Marilyn Agnes Nottle (atf Nottle Super Fund) | Owston | 11/05 | 50,000 | 25,000 (0.50 each) | Axis/Ward, Vallelonga | 166 – 171 | Ronald Geoffrey Nottle 23/4/08 (CB1/11) paras 3 -13; exs RGN 1, 2, 3, 4, 5 Marilyn Agnes Nottle 23/4/08 (CB1/12) paras 3-8 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 531, 532 (p 38) | Share registry (CB5/172), shareholder ID 628 |
| Joric Pty Ltd (atf Trusso Family Trust) | Seaswan | 1/06 | 40,000 | 20,000 (0.50 each) | 173 – 177 | Antonio Trusso 15/1/09 (CB1/29) paras 12-16; exs AT 1, 2, 3 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1212, 1213 (p 79) | Email correspondence (CB5/121) Share registry (CB5/172), shareholder ID 876 | |
| Adam John Schilling | Owston | 9/05 | 150,000 | 52,500 (0.35 each) | D’Emden | 184 – 189 | Adam John Schilling 14/1/09 (CB1/28) paras 5-10; exs AJS 1, 2 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1244, 1245 (p 81) | Share registry (CB5/172), shareholder ID 884 |
| Adam John Schilling | Seaswan | 1/06 | 20,000 | 10,000 (0.50 each) | D’Emden | 190 – 194 | Adam John Schilling 14/1/09 (CB1/28) paras 11-18; ex AJS 3 Gary Martyn Bertram 30/3/10 (CB2/32) ex GMB3, trans ID 1180, 1181 (p 78) | Email from Hill enclosing application form (CB5/112) Share registry (CB5/172), shareholder ID 884 |
STATEMENT OF FACTUAL MATTERS NOT IN DISPUTE AS BETWEEN PLAINTIFF AND FIRST AND SIXTH DEFENDANTS
In this statement of factual matters not in dispute, except as expressly indicated:
• references to a section, sub-section or Part are references to a section, sub-section or Part of the Corporations Act 2001 (Cth);
• references to a paragraph are to a paragraph of this agreed statement of facts; and
• references to a range of numbers or dates include the numbers or dates at both ends of the range.
Parties and relevant companies
1. The plaintiff (ASIC) is, pursuant to section 8 of the Australian Securities and Investments Commission Act 2001 (Cth), a body corporate that may sue in its corporate name.
2. Firepower Holdings Group Limited (Firepower BVI) is a company that was validly incorporated on 2 June 2005 and is and was at all material times in existence under the laws of the British Virgin Islands.
3. The first defendant (Axis) is a company that was validly incorporated on 27 September 1996 and is and was at all material times in existence under the laws of Australia, and is capable of being sued.
4. The second defendant (Firepower Investments) is a company that was validly incorporated on 15 April 2005 and was at all material times in existence under the laws of the Federal Territory of Labuan, Malaysia.
5. The third defendant (Owston) is a company that was validly incorporated on 9 August 1979 and is and was at all material times in existence under the laws of Australia.
6. The sixth defendant (Ward) was at all material times the sole director of Axis and therefore an officer of Axis.
7. Vincenzo Vallelonga (Vallelonga) was at all material times an employee of Axis.
8. The eighth defendant (Green Triton) is a company that was validly incorporated on 1 February 2005 in the British Virgin Islands and was at all material times in existence under the laws of the British Virgin Islands.
9. At all material times after the incorporation of Firepower BVI, the seventh defendant (Johnston) was a director of Firepower BVI and acted as executive chairman of Firepower BVI.
Issue of shares in Firepower BVI
10. At all material times since its incorporation, the authorised capital of Firepower BVI was made up of one class and one series of shares, divided into 1,000,000,000 shares of US$0.01 par value.
11. On or after 29 July 2005, Firepower BVI issued:
(a) 215,585,500 shares in Firepower BVI to Green Triton;
(b) 40,000,000 shares in Firepower BVI to Owston.
12. None of the shares issued in paragraph 11 were included in or accompanied by:
(a) a prospectus (whether lodged with ASIC or not);
(b) a profile statement (whether lodged with ASIC or not); or
(c) an offer information statement (whether lodged with ASIC or not).
13. Further, at no time has ASIC ever approved the use of a profile statement in relation to the issue of shares in Firepower BVI.
14. In the premises, on each occasion on which shares referred to in paragraph 11 (Shares) were issued, each such issue of shares (together Share Issues) was made without disclosure to investors under Part 6D.2.
15. There was a transfer of Shares from Green Triton to Firepower Investments on or about 22 May 2006.
16. At all material times that Axis and Ward distributed the share application forms referred to hereunder, Axis and Ward had authority to offer the shares for sale (on behalf of the relevant vendors) but did not have authority or capacity to effect or agree a transfer or conclude an agreement to transfer the shares if the offer was accepted.
Allans – first sale of Shares (145,000 Shares owned by Green Triton)
17. Nola Janice Allan and Geoffrey Ronald Allan (Allans) are the trustees for the Teret Superannuation Fund (Teret SF).
18. On about 21 September 2005, Axis, by Ward, gave a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Geoffrey Allan.
19. This application form stated that:
(a) the vendor was Green Triton;
(b) the price per Share was A$0.35;
(c) the Allans would be applying for 145,000 Shares;
(d) the total consideration payable was A$50,750; and
(e) payment was to be made to ANZ Banking Group Limited, Melbourne for account of UBS AG, Singapore in the name of Green Triton.
20. This application form was for the sale of Shares on behalf of Green Triton, that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the application form on behalf of Green Triton.
21. On 21 September 2005, the Allans signed the Application Form. A copy of the completed application form is annexed and marked GRA4.
22. The Allans returned the completed Application Form together with a cheque for the purchase of 145,000 shares in Firepower BVI at 35 cents each, at a total cost of $50,750 to Ward.
23. The sale of 145,000 Shares owned by Green Triton to the Allans was completed when the transfer of the Shares was entered in the Share Register of Firepower BVI (Register) (which bears the date 8 March 2006) and a certificate for those Shares was issued to the Allans as trustee for the Teret Superannuation Fund (dated 20 March 2006).
Allans – second sale of Shares (75,000 Shares owned by Firepower Investments)
24. Geoffrey Allan again met with Ward at Ward's office on or about 5 April 2006.
25. At this meeting, Axis, by Ward, provided Geoffrey Allan another application form.
26. This application form stated that:
(a) the vendor of the shares was Firepower Investments;
(b) the price per Share was US$1 or A$1.38; and
(c) payment for the Shares was to be made via the Morgan Alteruthemeyer Trust Account.
27. This application form was for the sale of Shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
28. At or after the meeting on or about 5 April 2006, Geoffrey Allan completed the following details on the application form, and then signed and returned it to Ward:
(a) the figure "75,000" for the number of shares purchased;
(b) "$103,500.00" for the total price; and
(c) the Allans' details and the date 5 April 2006.
29. A copy of the completed second application form is annexed and marked GRA8.
30. Geoffrey Allan returned the completed application form to Ward together with a cheque in the amount of $103, 500 to the Morgan Alteruthemeyer Trust Account as payment.
31. The sale of 75,000 Shares owned by Firepower Investments to the Allans was completed when the transfer of the Shares was entered in the Register (which bears the date 22 May 2006) and a certificate for those Shares was issued to the Allans as trustee for the Teret Superannuation Fund (dated 22 May 2006).
Ashworths – first sale of Share (145,000 Shares owned by Green Triton)
32. Gregory Vernon Ashworth and Carol Ann Ashworth (Ashworths) are trustees for their self-managed superannuation fund, called "Ashdown Superannuation Fund" (Ashdown SF).
33. On or about 3 October 2005, Axis, by Vallelonga, sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Carol Ashworth.
34. This application form stated that:
(a) the purchaser of the Shares would be Gregory Vernon Ashworth and Carol Ann Ashworth ATF Ashdown Superannuation Fund;
(b) the vendor of the Shares was Green Triton;
(c) the price per share was A$0.35;
(d) the Ashworths would be applying for 145,000 Shares;
(e) the total consideration payable was A$50,750; and
(f) payment for the Shares should be made to the Morgan Alteruthemeyer trust account.
35. This application form was for Shares to be transferred by Green Triton, that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the application form on behalf of Green Triton.
36. On or about 1 November 2005, the Ashworths completed the following details on the application form and then signed and returned it to Ward:
(a) "$50,750.00" for the sum of the cheque enclosed with the form; and
(b) Gregory Vernon Ashworth and Carol Ann Ashworth's details, passport numbers and the date "3-10-05".
37. A copy of the completed application form is annexed and marked CAA2.
38. The Ashworths paid for the shares by a cheque for $50,750 made out to the Morgan Alteruthemeyer trust account, which they provided to Ward.
39. The sale of 145,000 Shares owned by Green Triton to the Ashdown SF was completed when the transfer of the Shares was entered in the Register (which bears the date 8 March 2006) and a certificate for those Shares was issued to the Ashworths (dated 20 March 2006).
Ashworths – second sale of Share (27,500 Shares owned by Green Triton)
40. On or about 3 May 2006, Axis, by Vallelonga, emailed Carol Ashworth a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd".
41. A copy of the email is annexed and marked CAA6.
42. The application form stated that:
(a) the purchaser of the Shares was Carol Ann Ashworth;
(b) the vendor of the Shares was Firepower Investments;
(c) Carol Ashworth would be applying for 27,500 Shares;
(d) the price per Share was US$1 or A$1.30;
(e) the total consideration payable was A$35,750; and
(f) payment for the shares should be made to the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonweatlh Bank.
43. This application form was for the sale of Shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
44. On or about 5 May 2006, Carol Ashworth completed the following details on the application form and then signed and returned it to Vallelonga:
(a) she inserted the figure for the cheque she had enclosed with the application form in the appropriate place on the form;
(b) she inserted her telephone contact details onto the appropriate place on the form; and
(c) she inserted the date "5-5-06".
45. A copy of the completed application form is annexed and marked CAA7.
46. Carol Ashworth returned the completed application form to Vallelonga together with a cheque for A$35,750 made out to the Morgan Alteruthmeyer trust fund for the purchase of the shares.
47. The sale of 27,500 shares from Firepower Investments to Carol Ashworth was completed when the transfer of the Shares was entered in the Register (which bears the date 26 May 2006) and a certificate for those Shares was issued to Carol Ashworth (dated 26 May 2006).
Ashworths – third sale of Shares (22,000 Shares owned by Firepower Investments)
48. On or about 17 May 2006, Axis, by Ward, sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to the Ashworths for the sale of 22,000 fully paid Shares at A$1.31 per Share.
49. The application form stated that:
(a) the purchaser was Gregory Vernon Ashworth and Carol Ann Ashworth ATF Ashdown Superannuation Fund;
(b) the vendor of the Shares was Firepower Investments;
(c) the price per Share was US$1 or A$1.31;
(d) the Ashworths would be applying for 22,000 Shares;
(e) the total consideration payable was $28,820; and
(f) payment for the Shares should be made via the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonweatlh Bank.
50. This application form was for the sale of Shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
51. On or about 17 May 2006, Carol Ashworth completed the following details on the application form and then signed and returned it to Ward:
(a) "35,750.00" as the sum of the cheque payable to the Morgan Alteruthemeyer Account;
(b) she inserted her work telephone number; and
(c) "17-5-06" as the date.
52. A copy of the completed form is annexed and marked CAA10.
53. The Ashworths returned the application form to Ward together with a cheque made out to the Morgan Alteruthmeyer trust account for A$53,820. This cheque included $28,820 for the purchase of the Firepower BVI shares, and $25,000 for an unrelated transaction.
54. The sale of 22,000 Shares from Firepower Investments to Ashdown SF was completed when the transfer of the Shares was entered in the Register (which bears the date 6 June 2006) and a certificate for those Shares was issued to the Ashworths (dated 6 June 2006).
Baird – first purchase of Shares (300,000 Shares owned by Owston)
55. Robin Ronald Baird (Baird) and Margot Louise Baird are the two directors of Pejean Pty Ltd (Pejean). Pejean is the trustee of the RMZ Superannuation Fund (RMZ SF).
56. On or about 1 February 2006, Axis, by Vallelonga, sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Baird.
57. The application form indiicated that:
(a) the vendor of the Shares was Owston;
(b) the price per Share was $A0.50;
(c) Baird would be applying for 300,000 Shares;
(d) the total consideration payable for the Shares was A$150,000; and
(e) payment for the Shares should be made to the Morgan Alteruthemeyer trust account.
58. This application form was the sale of Shares on behalf of Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the application form on behalf of Owston.
59. On or about 1 February 2006, Baird completed the following details on the application form and then signed and returned it to Axis by Vallelonga:
(a) "01/02/2006" as the date; and
(b) "Pejean Pty Ltd ATF RM2 Superannauation Fund" under the section "Shares to be held in the name of".
60. A copy of the completed application form is annexed and marked RRB8.
61. Baird paid for the shares by cheque for A$150,000 payable to the Morgan Alteruthmeyer trust account and provided it to Axis by Ward.
62. The sale of 300,000 Shares owned by Owston to Pejean was completed when the transfer of the Shares was entered in the Register (which bears the date 1 February 2006).
Baird – second purchase of Shares (154,000 Shares owned by Firepower Investments)
63. On or about 4 May 2006, Axis, by Vallelonga sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Baird.
64. This application form stated that:
(a) the vendor of the Shares was Firepower Investments;
(b) the price per Share was US$1 or A$1.30;
(c) payment for the Shares should be made to the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonweatlh Bank.
65. This application form was for the sale of Shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
66. On or about 4 May 2006, Baird completed the following details on the application form and then signed and returned it to Axis by Vallelonga:
(a) "154,000" as the number of Shares;
(b) "200,200" as the total consideration payable;
(c) "$200,200" as the sum of the cheque payable to the Morgan Alteruthemeyer Trust Account;
(d) "Pejean Pty Ltd ATF RMZ Superannuation Fund" under the section "Shares to be held in the name of"; and
(e) Pejean's details and "4 May 2006" as the date.
67. A copy of the completed application form is annexed and marked RRB12.
68. Baird paid for the Shares by a cheque payable to the Morgan Alterethmeyer trust account for A$200,200.
69. The sale of 154,000 Shares owned by Firepower Investments was completed when the transfer of the Shares was entered in the Register (which bears the date 24 May 2006) and a certificate for those Shares was issued to Pejean (dated 30 May 2006).
Carters – purchase of Shares (22,000 Shares owned by Firepower Investments)
70. On or about 3 April 2006, Axis, by Vallelonga, emailed a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to Shannon Carter.
71. A copy of the email is annexed and marked SFC2.
72. The application form stated that:
(a) the vendor was Firepower Investments;
(b) the price per Share was US$1 or A$1.35;
(c) Shannon Carter would be applying for 22,000 shares;
(d) the total consideration payable was A$29,700; and
(e) payment for the Shares should be made to the Morgan Alteruthemeyer trust account, and provided the details of a relevant bank account with the Commonweatlh Bank.
73. A copy of the completed form is annexed and marked SFC4.
74. This application form was for the sale of Shares owned by Firepower Investments that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the application form on behalf of Firepower Investments.
75. On or about 4 April 2006, Shannon Carter signed and dated the application form.
76. On or about 4 April 2006, Shannon Carter returned the application form to Ward by post together with a cheque for A$29,700 payable to the Morgan Alteruthmeyer trust account, and separate bank cheque for A$1,485 payable to Axis.
77. The sale of 22,000 Shares from Firepower Investments Pte Ltd to Shannon Carter was completed when the transfer of the Shares was entered in the Register (which bears the date 22 May 2006) and a certificate for those Shares was issued to Shannon Carter (dated 22 May 2006).
Angela Jones and Penny Buchan – purchase of Shares (50,000 Shares owned by Owston)
78. Angela Jones and Penny Buchan are trustees for the following self-managed superannuation funds:
(a) "The P Buchan Superannuation Fund" (Buchan SF); and
(b) "The A Jones Superannuation Fund" (Jones SF).
79. On or about 22 November 2005, Axis, by Ward, gave Jones a form headed "Share Transfer Form".
80. The Share Transfer Form stated that:
(a) the vendor was Owston;
(b) the price per Share was A$0.50;
(c) the total number of Shares to be purchased was 50,000;
(d) the total consideration payable was A$25,000; and
(e) payment was to be made to Owston via Morgan Alteruthemeyer Trust Account.
81. The form was for the sale of Shares on behalf of Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
82. On or about 22 November 2005, Jones and Buchan completed the following details on the Share Transfer Form, and then signed and returned it to Ward:
(a) "Angela May Jones & Penny Therese Buchan ATF The A Jones Superannuation Fund & Angela May Joens as Tenants in Common 1. A Jones Super Fund holding 40,000 of 50,000 shares 2.Angela May Jones holding 10,000 of 50,000 shares" in the section "Shares to be held in the name of";
(b) Jones's address; and
(c) "22/11/2005" as the date.
83. A copy of the completed Share Transfer Form is annexed and marked AJMJ1.
84. At the same time as completing the Share Transfer Form, Jones prepared a cheque for A$20,000 from her Macquarie Bank account, which was the bank account for Jones SF and gave it to either Ward or Vallelonga. Short after the meeting, Jones paid $5,000 by bank cheque and sent it to Axis.
85. The sale of the Shares was completed when the transfer of the Shares was entered in the Register (which bears the date 22 November 2005) and a certificate for those Shares was issued to Jones and Buchan (dated 20 March 2006).
Penny Buchan – purchase of Shares (20,000 Shares owned by Owston)
86. On or about 22 November 2005, Axis, by Ward provided another Share Transfer Form to Buchan and Jones.
87. The Share Transfer Form stated that:
(a) the vendor was Owston;
(b) the price per Share was A$0.50;
(c) the total number of Shares to be purchased was 20,000;
(d) the total consideration payable was A$10,000; and
(e) payment was to be made to Owston via Morgan Alteruthemeyer Trust Account.
88. The Share Transfer Form was for the sale of Shares on behalf of Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
89. Buchan and Jones completed the following details on the Share Transfer Form, and then signed it and gave to Ward:
(a) "Penny Therese Buchan & Angela May Jones ATF The P Buchan Superannuation Fund" in the section "Shares to be held in the name of";
(b) Jones's address; and
(c) "22/11/2005" as the date.
90. A copy of the completed Share Transfer Form is annexed and marked PTB2.
91. Penny Buchan prepared a cheque for A$10,000 from The P Buchan Supernannuation Fund and dated it 22 December 2005 and gave it to Ward together with the completed Share Transfer Form.
92. The sale of Shares was completed when the transfer of the Shares was entered in the Register (which bears the date 22 November 2005) and a certificate for those Shares was issued to Jones and Buchan (dated 22 March 2006).
Furlans – first purchase of Shares (202,000 owned by Green Triton)
93. On about September 2005 Nicholas Joseph Fulan and Carnelia Furlan (Furlans) met Ward at Ward's offices in Subiaco.
94. On or about 5 October 2005, Axis, by Vallelonga sent an email attaching a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to the Furlans.
95. A copy of the email and attached application form is annexed and marked NJF1.
96. The application form stated that:
(a) the vendor was Green Triton;
(b) the price per share was A$0.35;
(c) the total number of Shares to be purchased was 202,000;
(d) the total consideration payable was A$70,700;
(e) the Shares were to be held in the name of "Nicholas Furlan & Camelia Furlan ATF Furlan Family Superannauation Fund AND Nicholas Furlan & Camelia Furlan (As Tenants in Common) AS TENANTS IN COMMON With Furlan Family Superannuation Fund holding 145,000 of 202,000 shares and Nicholas & Camliea Furlan holding 57,000 of 202,000 shares"; and
(f) payment was to be made to Green Triton via Morgan Alteruthemeyer Trust Account.
97. The application form was for Shares to be transferred by Green Triton, that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the form on behalf of Green Triton.
98. On or about 12 October 2005, the Furlans, on behalf of themselves and as trustees of Furlan SF, signed the form, dated it "12th Oct 2005" and then returned it to Ward.
99. A copy of the completed application form is annexed and marked NJF2.
100. The Furlans paid A$19,950 for the purchase of the Shares by cheque, and resolved to pay A$50,750 for the Shares as trustees of the Furlan SF.
101. The sale of Shares was completed when the transfer of the Shares was entered in the Register (which bears the date 8 March 2006) and a certificate for those Shares was issued to the Furlans (dated 8 March 2006).
Furlans – second purchase of Shares (202,000 Shares owned by Owston)
102. At a meeting with Ward at the Furlan's home in December 2005, Nicholas Furlan told Ward that the Furlans would buy 60, 000 shares in Firepower BVI.
103. Axis, by Ward, provided the Furlans a form headed "Share Transfer Form".
104. The Share Transfer Form stated that:
(a) the Shares were to be transferred from Owston, but (incorrectly) that the vendor was Seaswan;
(b) the price per Share was A$0.50;
(c) the total number of Shares to be purchased was 60,000;
(d) the total consideration payable was A$30,000;
(e) the Shares were to be held in the name of "Nicholas Furlan & Camelia Furlan ATF Furlan Family Superannuation Fund "; and
(f) payment was to be made to the Morgan Alteruthemeyer Trust Account.
105. A copy of the completed Share Transfer Form is annexed and marked NJF6.
106. The form was for the sale of Shares to be transferred by Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
107. On or about 18 January 2006, the Furlans, as trustees of the Furlan SF, signed the form, dated it "18/1/2006" and returned it to Ward.
108. The Furlans paid A$30,000 for 60,000 Shares at fifty cents each by way of a cheque made out to "Morgan Alteruthemeyer Trust Fund" signed and sent to Axis on or about 17 January 2006.
109. The sale of Shares was completed when the transfer of the Shares was entered in the Register (which bears the date 18 January 2006 and indicates that the Shares were transferred from Owston to the Furlans) and a certificate for those Shares was issued to the Furlan SF (dated 20 March 2006).
110. On or about 20 December 2006 the Furlans disposed of 30,000 Shares by selling them to Ward. The Furlans did this by completing an "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd", which Ward had provided them with. Ward subsequently gave the Furlans a cheque for A$30,000.
Edmondsons – first purchase of Shares (290,000 owned by Green Triton)
111. Ludmilla Elizabeth Edmondson and Darryl John Edmondson are the joint trustees of the DJ & LE Edmondson Superannuation Fund (Edmondson SF).
112. On or about 9 September 2005, Axis, by Ward, sent a form headed "Share Transfer Form" to the Edmondsons.
113. The Share Transfer Form stated that:
(a) the vendor was Green Triton;
(b) the price per Share was A$0.35;
(c) the total number of Shares to be purchased was 290,000;
(d) the total consideration payable was A$101,500;
(e) the Shares were to be held in the name of "Darryl John Edmondson & Ludmilla Elizabeth Edmondson ATF DJ & LE Edmondson Superannuation Fund"; and
(f) payment was to be made to Green Triton via Morgan Alteruthemeyer Trust Account.
114. The form was for Shares to be transferred by Green Triton, that were part of the Share Issue to Green Triton. Axis and Ward had authority to distribute the form on behalf of Green Triton.
115. On or about 15 September 2005, the Edmondsons signed the form, dated it "15.9.05", and returned it to Ward.
116. A copy of the completed Share Transfer Form is annexed and marked DJE 2.
117. On 15 September 2005, the Edmondsons, as trustees of Edmondson SF, paid A$101, 500 by way of a cheque.
118. The sale of Shares was completed when the transfer of the Shares was entered in the Register (which bears the date 8 March 2006) and a certificate for those Shares was issued to Edmondson SF (dated 20 March 2006).
Edmondsons – second purchase of Shares (48,000 Shares owned by Firepower Investments)
119. On or about 28 April 2006, Axis, by Ward sent a form headed "Application for Share Transfer from an Existing Shareholder Firepower Holdings Group Ltd" to the Edmondsons.
120. The application form stated that:
(a) the vendor was Firepower Investments;
(b) the price per Share was US$1.00 or A$1.35;
(c) the total number of Shares to be purchased was 48,000;
(d) the total consideration payable was A$64,800;
(e) the Shares were to be held in the name of "Darryl John Edmondson & Ludmilla Elizabeth Edmondson ATF DJ & LE Edmondson Superannuation Fund"; and
(f) payment was to be made to Firepower Investments via Morgan Alteruthemeyer Trust Account.
121. The form was for Shares to be transferred by Firepower Investments, that were part of the Share Issue to Green Triton and were transferred on or about 22 May 2006 to Firepower Investments. Axis and Ward had authority to distribute the form on behalf of Firepower Investments.
122. On or about 28 April 2006, the Edmondsons, as trustees of the Edmondson SF, signed the form and dated it "28/4/06", and then returned it to Ward.
123. The Edmondsons paid A$64,800 for the purchase of the Shares by cheque made out to "Morgan Alteruthemeyer Trust Account" sent to Ward on or about 28 April 2006.
124. The sale of Shares was completed when the transfer of the Shares was entered in the Register (which bears the date 24 May 2006) and a certificate for those Shares was issued to Edmondson Superannuation Fund (dated 24 May 2006).
Nottles – purchase of Shares (50,000 Shares owned by Owston)
125. Ronald Geoffrey Nottle and Marilyn Agnes Nottle (Nottles) are the trustees of The RG & MA Nottle Superannuation Fund (Nottle SF).
126. On or about 29 November 2005, Axis, by Ward sent a letter enclosing a form headed " Share Transfer Form" to the Nottles, as trustees of the Nottle SF, for the sale of 50,000 Shares at A$0.50 per Share.
127. A copy of the letter and Share Transfer Form is annexed and marked RGN1 and RGN2.
128. The Share Transfer Form stated that:
(a) the vendor was Owston;
(b) the price per Share was A$0.50;
(c) the total number of Shares to be purchased was 50,000;
(d) the total consideration payable was A$25,000;
(e) the Shares were to be held in the name of "Ronald Geoffrey Nottle & Marilyn Agnes Nottle ATF The RG & MA Nottle Superannuation Fund"; and
(f) payment was to be made to Owston via the Morgan Alteruthemeyer Trust Account.
129. The form was for the sale of Shares by Owston, that were part of the Share Issue to Owston. Axis and Ward had authority to distribute the form on behalf of Owston.
130. On or about 9 December 2005, Ronald Nottle, as trustee of the Nottle SF, signed the form and dated it "9-12-2005", and returned it to Ward.
131. The Nottles paid A$25,000 for the purchase of the Shares by cheque made out to "Morgan Alteruthemeyer Trust Account" sent to Axis on or about 9 December 2005.
132. The sale of the shares was completed when the transfer of the Shares was entered in the Register on 9 December 2005 and a certificate for those Shares was issued to the Nottle SF on 31 March 2006.
Sale and purchase of Shares made in Australia
133. Each of the sales and purchases of Shares, and conduct leading up to those sales and purchases, that are set out above occurred in Australia.
134. In the case of each of the Shares sold, the amount payable by the person buying the Shares for the securities (together Investors) and the amounts previously paid by the Investors for shares in Firepower BVI did not add up to at least A$500,000.
135. In the case of each of the Investors it did not appear from a certificate given by a qualified accountant no more than six months before the relevant Shares were purchased that the Investors:
(a) had net assets of at least A$2,500,000 (including the net assets of a company or trust controlled by the Investors); or
(b) had a gross income for each of the two financial years preceding the purchase of Shares of at least A$250,000 (including the gross income of a company or trust controlled by the Investors); or
(c) was a company or trust controlled by a person who had net assets of at least A$2,500,000 or had a gross income for each of the two financial years preceding the purchase of Shares of at least A$250,000.
136. In the case of each of the purchases of Shares:
(a) the person selling the Shares, at the time of selling the Shares, did not hold or make the sale under the authority of an Australian Financial Services Licence;
(b) further or alternatively, the person making the sale did not give the Investors who received the Shares, before, or at the time when, the Shares were sold, a written statement of any reasons for being satisfied that the Investors had previous experience in investing in securities that allowed the Investors to assess:
(i) the merits of the purchase;
(ii) the value of the Shares;
(iii) the risks involved in accepting the purchase;
(iv) the Investors' own information needs; and
(v) the adequacy of the information given by the person making the sale; or
(c) further or alternatively, the Investors who received the Shares did not sign a written acknowledgment before, or at the time when, the purchase was made that any person had not given the Investors a disclosure document under Part 6D.2 in relation to the purchase of Shares (Disclosure Document).
137. None of the Investors, at the time or times that any purchase of Shares was made by them:
(a) held an Australian Financial Services Licence;
(b) were a body regulated by Australian Prudential Regulation Authority (except to the extent that the Investors were a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth));
(c) were a body registered under the Financial Corporations Act 1974 (Cth);
(d) were the trustee of:
(i) a superannuation fund; or
(ii) an approved deposit fund; or
(iii) a pooled superannuation trust; or
(iv) a public sector superannuation scheme
within the meaning of the Superannuation Industry (Supervision) Act 1993 that had net assets of at least A$10 million;
(e) were listed on any financial market operated by any of Australia Pacific Exchange Limited, Australian Stock Exchange Limited, Bendigo Stock Exchange Ltd or Stock Exchange of Newcastle Limited;
(f) were a public authority or an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory;
(g) carried on a business of investment in financial products, interests in land or other investments, by investing funds received (directly or indirectly) following an offer or invitation to the public;
(h) were a foreign entity that, if established or incorporated in Australia, would have been covered by one of paragraphs 204(a) to 204(g);
(i) had or controlled gross assets of at least A$10 million (including any assets held by an associate of the Investors within the meaning of section 9, or under a trust that the Investors managed); or
(j) were:
(v) a person who made or participated in making, decisions that affected the whole, or a substantial part, of the business of Firepower BVI or any of its related bodies corporate;
(vi) the spouse, parent, child, brother or sister of such a person; or
(vii) a body corporate controlled by such a person.
138. None of the purchases of Shares were made under a dividend reinvestment plan or bonus share plan.
139. No shares in Firepower BVI have ever been quoted on any financial market operated by any of Australia Pacific Exchange Limited, Australian Stock Exchange Limited, Bendigo Stock Exchange Ltd or Stock Exchange of Newcastle Limited.
140. No prospectus, profile statement or offer information statement has been ever lodged with ASIC with respect to any of the share transactions described above.
141. Further, at no time has ASIC ever approved the use of a profile statement in relation to the issue of shares in Firepower BVI.
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See sections 707 and 727 of the Corporations Act 2001 (Cth).
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See section 708(8) of the Corporations Act 2001 (Cth).
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See ASIC v Karl Suleman Enterprizes [ 2003] NSWSC 400.
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Share registry (CB5/172); affidavit of Gary Martyn Bertram sworn 30/3/10 (CB2/32) ex GMB3.
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Affidavit of Gary Martyn Bertram sworn 30/3/10 (CB2/32) ex GMB3.
