FEDERAL COURT OF AUSTRALIA

Verguier Pty Ltd v Ramelius Resources Limited [2019] FCA 796

ORDERS

THE COURT ORDERS THAT:

1.    The matter is adjourned to a date and time to be fixed for the hearing of submissions with respect to costs and the form of the declarations and orders to give effect to these reasons.

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

REASONS FOR JUDGMENT

WHITE J:

1    The defendant to these proceedings (Ramelius) is a publically listed company. It has contracted with Computershare Investor Services Pty Ltd (Computershare) for it to provide “security registry services”. Those services include the maintenance of the Share Registry of Ramelius, and the processing of share transfers, whether on or off market.

2    The Second, Third and Fourth Plaintiffs are members of the O’Reilly family. I will refer them to as the “O’Reilly Plaintiffs”.

3    Until 30 June 2016, the O’Reilly Plaintiffs were the trustees of the Frank O’Reilly Superannuation Fund (the Fund). On 1 July 2016, the O’Reilly Plaintiffs and the members of the Fund appointed the First Plaintiff (Verguier) as trustee of the Fund with effect from that same day. Verguier continues as the sole trustee of the Fund.

4    As at 30 June 2016, the O’Reilly Plaintiffs held 310,000 fully paid ordinary shares in Ramelius in their capacity as trustees for the Fund. They sought to have those shares registered by Ramelius in the name of Verguier. It is their attempt to do so which gives rise to this litigation.

5    On 12 December 2016, the Second Plaintiff (Mr O’Reilly) submitted to Computershare an executed share transfer form in respect of the transfer of the 310,000 shares to Verguier. Mr O’Reilly had obtained the pro-forma share transfer form, entitled “Standard Transfer Form”, from the Computershare website.

6    Computershare has declined to effect the transfer until it is paid a “security validation fee” of $62. The Plaintiffs contend that they are not required to pay that fee. They rely for this purpose on a provision in the Ramelius constitution which prohibits it from charging a fee “to register a transfer”.

7    In these proceedings, the Plaintiffs seek declarations with a respect to the lawfulness of the failure by Ramelius to register the share transfer. Verguier seeks an order pursuant to s 1071F(2) of the Corporations Act 2001 (Cth) (the Act) requiring Ramelius to register the transfer. The O’Reilly Plaintiffs seek an order enforcing the statutory contract contained in the constitution of Ramelius by requiring Ramelius to register the transfer of shares.

8    For the reasons which follow, I consider that the Plaintiffs have established their entitlement to relief.

Factual setting

9    The action proceeded on affidavits and the evidence in the trial was wholly documentary. On the Plaintiffs’ side, it comprises an affidavit from Mr O’Reilly made on 4 June 2018 and an affidavit from Mr Gentry, the Plaintiffs’ solicitor, made on 25 June 2018.

10    Ramelius relied on three affidavits of Mr Drew (the Manager of the Transaction Services Group within Computershare) made on 26 July, 5 September and 13 September 2018 and two affidavits of Mr Francese (its Company Secretary) made on 25 July and 5 September 2018.

11    None of the deponents was required to attend for cross-examination.

12    Computershare is a well-known provider of share registry services to publically listed companies. The website of Ramelius informs its shareholders, amongst other things, that Computershare operates its Share Registry.

13    Mr Drew deposed that Computershare had commenced charging a fee for “security validation services in respect of all off-market transfers of shares” on 18 April 2011, following a change to Listing Rule 8.14.1 of the ASX. He said that the fee is charged to cover the costs incurred by Computershare in undertaking “security validation checks” on transfer forms to reduce the risk that a transaction is fraudulent, unauthorised or otherwise improper. These “checks” include the requirement that transferors provide proof of their identity (such as a certified copy of a driver’s licence or a passport). When multiple transfer forms are submitted involving transfers from the same transferors to the same transferees, a single fee may be charged. Mr Drew deposed that Computershare charges the fee to shareholders “as they are the source of the risk that the checks are intended to mitigate against”.

14    Mr Drew deposed that the following requirements apply to all off-market share transfers processed by Computershare, including those in respect of the shares of Ramelius:

[8.1]    the transferor and transferee, or a person authorised on their behalf, must complete and sign a document entitled “Standard Transfer Form” (Standard Form) which document contains details such as contact information for the transferor and transferee, and details about the securities to be transferred including the class, quantity and amount of consideration;

[8.2]    copies of identification documentation in respect of the transferor must be certified in line with Computershare's certification requirements and must be enclosed with the Standard Form;

[8.3]    payment of a fee for security validation services must be made by credit card, cheque, money order or bank draft, and the appropriate payment method and account details must be specified on the Standard Form. The current fee is AU$69.00 inclusive of GST; and

[8.4]    the original Standard Form and the required enclosures must be submitted to Computershare at the postal address stated on the Standard Form. The document cannot be submitted electronically as Computershare requires originally signed or certified, as applicable, documents.

15    Mr Drew also claimed that, by their act in submitting the standard transfer form, transferors and transferees agreed to be bound by the terms and conditions in the transfer form:

[10]    By submitting the Standard Form to Computershare the transferor and transferee agree to be bound by the terms and conditions stated on the Standard Form.

16    It seemed to be common ground that a transfer of shares in Ramelius could not be effected otherwise than through Computershare.

17    The share transfer form which Mr O’Reilly obtained from the Computershare website commenced with instructions concerning its use. At the foot of those instructions was a checklist, which provided (relevantly):

Your checklist – what you need to do to complete this form

Section A     Follow the instructions in Section A carefully to complete the Transfer Form

Section B 󠄖󠄖    A fee of AU$62.00 (per transfer, inclusive of GST) is payable for security validation services prior to the registration of each transfer. For more information please refer to the Terms and Conditions in this document.

    Where multiple transfers are submitted together for the same seller or joint sellers at the same time, a single AU$62.00 fee may be charged. This will only apply for transfers where the seller’s registered name and address details are exactly the same on each transfer.

    A fee is not payable if securities are being transferred directly from a deceased estate either to the executor(s) or directly to the beneficiaries of the estate.

Section C 󠄖󠄖    For security validation purposes the seller(s) must provide copies of originally certified documentation to verify their identity. Section C outlines documentation that must be returned depending on the type of holding and the registered details of the seller(s) and instructions to certify documents.

(Emphasis added)

18    Section B of the form contained a provision for payment of the $62 fee by credit card, cheque, money order or bank draft.

19    The portion of the form with the heading “Standard Transfer Form” was preceded by a note concerning the payment of the fee:

Please Note: A fee is payable prior to the registration of the transfer (refer to the Checklist and Terms and Conditions for additional information)

(Bold in the original)

20    Section C of the document contained a statement of Computershare’s Terms and Conditions:

Terms & Conditions

1.    By submitting an off-market transfer form to [Computershare] and requesting that Computershare proceed to register the transfer, you agree to be bound by these terms and conditions.

2.    Computershare will conduct reasonable security validation checks (Services) on receipt on an off-market transfer form (with requested accompanying documentation) and in consideration for payment of the designated fee. The designated fee will be published on Computershare’s website www.investorcentre.com or can be otherwise obtained by contacting Computershare on 1300 850 505 or +61 3 9415 4000.

3.    Computershare will require a reasonable time to perform the Services and process the transfer and this may take longer than the standard processing time of 3 business days, particularly for international transfers.

4.    Computershare reserves the right to request additional information in circumstances where a transfer form has not been properly completed or where the transfer appears to be improper or unauthorised and to delay or refuse processing the transfer in those circumstances.

5.    Computershare performs the Services as a reasonable precaution to reduce the risk that a transfer is fraudulent, unauthorised or improper, however, Computershare’s processing, accepting or registering a transfer is not equivalent to a guarantee or any assurance that the transfer is genuine, effective or has been authorised.

…

(Bold emphasis in the original and emphasis in italics added)

21    The executed share transfer form submitted to Computershare on 12 December 2016 showed Verguier as the transferee and the O’Reilly Plaintiffs as the transferors of the shares.

22    Before submitting the forms, Mr O’Reilly had noted the provisions in the Ramelius constitution concerning the transfer of its shares, including the provision that Ramelius was not to charge a fee to register a transfer. I will set out the relevant clauses shortly.

23    In his letter of 12 December 2016 to Computershare accompanying the share transfer forms relating to Ramelius and another company in which the Plaintiffs held shares, Mr O’Reilly (describing himself as writing on behalf of the Trustees of the Fund) said:

Please find attached standard share transfers as obtained from the Computershare website.

Please also note that this request is made under the governing rules of the relevant Companies and is not subject to any terms and conditions of any third party whatsoever. That is to say, we explicitly reject any terms and conditions (such as those required to change the address via Computershare’s website) or policies that Computershare may have in place.

We object to the disclosure of personal information to parties described in the Privacy Notice, Computershare must not use or retain any of the information provided in the certified Driver’s Licences for such purposes.

You will note that the constitutions of PNR and RMS explicitly preclude the company from charging a fee for this transfer and as such we have no intention of paying.

Furthermore, I draw your attention to Listing Rule 8.10 which states that a Company may not delay or interfere with the registration of a transfer document related to quoted securities. Failure to register these transfers may result in a breach of the Listing Rules by your clients.

24    By letter dated 21 December 2016, Computershare informed Mr O’Reilly that it was “currently unable to proceed with the request” and returned the share transfer forms to him. Computershare explained that it would not process the transfer of the shares in Ramelius because the transfer form had not been signed by all the transferors, Verguier had not stated the capacity in which it was signing the transfer form, amendments had been made to the form without being initialled and the “seller identification document” relating to the Fourth Plaintiff had not been certified. In addition, Computershare said:

Security validation fee is required

We did not receive payment for the security validation.

(Bold in the original)

25    Between 21 December 2016 and 27 February 2017, Mr O’Reilly corresponded with the Company Secretary of Ramelius, Mr Francese, concerning the transfer. I will return to that correspondence shortly.

26    On 27 February 2017, Mr O’Reilly resubmitted to Computershare the share transfer form for the transfer of the 310,000 shares. The Plaintiffs had addressed in the resubmitted form the shortcomings identified in the letter from Computershare of 21 December 2016, but Mr O’Reilly did not provide payment of the security validation fee.

27    By letter dated 9 March 2017, Computershare returned the share transfer form to Verguier saying that it was unable to proceed with the transfer request. Computershare gave the following reason:

Security validation fee is required.

We did not receive payment for the security validation.

Computershare has fraud detection measures in place to protect securityholders and the companies they invest in. A fee of $62 (incl. gst) is required to cover a fraud prevention security check on the authenticity of the seller details. Where multiple transfers are submitted together for the same seller or joint sellers, a single AU$62 fee may be charged. However, this will only apply for transfers where the seller’s registered name and address details are exactly the same on each transfer.

Payment is required in Australian dollars and can be made via credit card, cheque or money order made payable to Computershare Investor Services.

28    The Computershare letter of 9 March 2017 appears to be of pro-forma kind. The stated explanation also appears to be in the form of a template. As is apparent, the sole reason Computershare gave for not registering the transfer was that Verguier had not paid the “security validation fee”.

29    Further correspondence then ensued. It included complaints by Mr O’Reilly to the Australian Securities Exchange (ASX) and to the Australian Securities and Investments Commission (ASIC). It is not necessary for present purposes to record that correspondence. It is sufficient to state that the parties reached a position of standoff: the Plaintiffs refused to pay the $62 fee and Computershare refused to register the transfer without it being paid.

The Plaintiffs’ correspondence with Ramelius

30    On 18 January 2017, Mr O’Reilly sent an email to Mr Francese which stated (relevantly):

Hi Dom,

I had a discussion with Mark yesterday about how frustrated I am with Computershare and their attempts to interpose 3rd party conditions on an off market transfer of 310,000 RMS shares. This is a simple change of name of an SMSF from individual trustees to a company trustee.

Basically, I insist that the valid transfer (s1071B(3)&(4)) submitted be processed under the common law contract (ie RMS Constitution – see attached) between the members and RMS and have highlighted that to refuse the transfer for non-agreement to their T&Cs, including fee payment, is likely a breach of LR 8.10.

…

Further complicating the matter, for both you and PNR, is that Computershare now no longer writes back to me rejecting my off market transfers, it now seems to ignore them totally. The most recent attempt was submitted on or around 13th December 2016 for which I have received no correspondence. I should draw to your attention s1071E which gives the Company 2 months to give notice of its refusal, which Computershare has yet to do so, and is an “offence” under the meaning of s 1311(1).

It’s not clear to me whether the “person” contravening the Act would be someone at RMS or Computershare.

I am left with getting a court order (s1071F), in which case RMS, or more likely Computershare as the “relevant authority” (s1071F(3)), may be required to compensate me for my losses (s175(2) CA), or accumulating enough non-enforcement of its rules to force ASIC to act and ensure that the ASX enforces its rules.

…

31    Mr Francese responded by an email to Mr O’Reilly on 8 February 2017, saying:

•    Computershare confirmed it received your off market transfer on 16 December 2016.

•    The transfers were rejected by Computershare on 21/12/2016 because certain seller and buyer authorisations were required, amendments on the document were not initialed (sic) by the signatories and a seller identification document was not certified.

•    Computershare informed me that a letter informing you of these requirements was sent to you on 21 December 2016 (I have obtained and attached a copy for your reference).

•    The fee which Computershare charges for off market transfers is to cover the cost of validation checks which is a standard security check undertaken for all off market transfers of securities of listed companies including Ramelius. This is regulated under the ASX Listing Rules (see extracts below).

•    Computershare indicated that there is no fee charged for the registration of the off market transfer once the validation checks are satisfactorily completed.

(Emphasis added)

Mr Francese attached to his email an extract from the ASX Listing Rules/Guidance Notes, to which I will return later in these reasons.

32    Mr O’Reilly responded to Mr Francese’s email on 13 February 2017. The following extract of his email indicates the position being taken by the Plaintiffs:

Hi Dom, thank you for looking into this.

Just to clarify my position:

•    I have no interest in what Computershare’s view is. They are not a party to the constitution that governs the transfer. Nor are they subject to either the Listing Rules or the Corporations Act. The only time they hold themselves out as “the Company” is when they wish to charge a fee they have no entitlement to.

•    I did not receive a response from Computershare that corresponds to that date, I will take it in good faith that they attempted to do so within the timeline prescribed.

•    I reject the need for these “due diligence validation checks” because there has not been one single documented case of fraud in relation to these types of transfers. Computershare do frequently put up an attempted case of fraud, which was in fact identified by them under the old system. I do acknowledge RMS’s right to reasonably enquire, as long as it complies with its constitution.

•    The transfer in question has already occurred and I believe I have notified the Company in a way that satisfies my obligations under the constitution. I do not intend to resubmit this application.

•    I am still awaiting an explanation as to why a 3rd party is allowed to interpose its T&Cs into the common law contract that already exists.

(Emphasis in the original)

33    It is not clear what, if any, response Mr Francese made to Mr O’Reilly’s email of 13 February 2017.

The parties’ contentions

34    The Plaintiffs’ claim in the proceedings is straightforward. They submit that cl 23 in the Ramelius constitution is unambiguous and operates to prevent Ramelius from charging any fee, including a “security validation fee”, for registering a transfer of shares. Despite that prohibition, Ramelius was, by its agent Computershare, imposing a charge for the registration of the share transfer. The description of the charge as a fee for a security validation service did not alter its character.

35    The attitude of Ramelius is adequately encapsulated in the fourth and fifth bullet points in the email from Mr Francese to Mr O’Reilly of 8 February 2017 set out earlier.

The obligations of Ramelius

36    The constitution of Ramelius as amended with effect from 28 November 2013 was in evidence. The replaceable rules in the Act do not apply to Ramelius.

37    By s 140(1)(a) of the Act, the constitution of Ramelius has the effect of a contract between Ramelius and its members. The O’Reilly Plaintiffs are entitled to enforce the terms of the contract, at least in so far as it involves rights personal to themselves.

38    Part 4 of the constitution provides for the transfer of shares. Clauses 20-24 provide (relevantly):

[20]    Instruments of transfer

Subject to this constitution, a shareholder may transfer a share:

[20.1]    in the case of CHESS Approved Securities, in accordance with the CHESS Rules;

[20.2]    by an instrument of transfer in any common form or other form approved by the Directors;

[20.3]    by any other method of transferring securities recognised by the Corporations Act 2001 and ASX and approved by the Directors.

[21]    Registration

…

[21.2]    If an instrument of transfer is used, it must be:

[21.2.1]    executed by or for both the transferor and the transferee (unless it is a sufficient transfer of marketable securities);

[21.2.2]    stamped;

[21.2.3]    delivered to the Company's share registry, together with any evidence the Directors require to prove:

(a)    the title of the transferor;

(b)    the transferor's right to transfer the shares; and

(c)    the proper execution of the instrument of transfer.

[22]    Effect of transfer

Subject to the CHESS Rules, a transferor of shares remains the holder of the shares until the transfer is registered and the name of the transferee is entered in the register of shareholders as the owner of the shares.

[23]    No charge

The Company must not charge a fee to register a transfer.

[24]    Refusal to register transfer

…

[24.2]    If the Company is admitted to the official list of ASX, the Company must not prevent, delay or interfere with the generation of a Proper Transfer or the registration of a paper-based transfer in registrable form. However, the Company may ask ASX Settlement to apply a holding lock to prevent a Proper Transfer, or refuse to register a paper-based transfer, where permitted by the Corporations Act 2001 or the Listing Rules. The Company must do so if the Corporations Act 2001 or the Listing Rules so require.

…

39    The Plaintiffs emphasised cll 23 and 24.

40    It was common ground that the 310,000 shares which the O’Reilly Plaintiffs sought to have transferred are CHESS Approved Securities for the purposes of cl 20.1. It was also common ground that Ramelius had not approved pursuant to cl 20.2 any form of instrument of transfer, other than that available on the Computershare website, for use in the transfer of its shares.

41    Part 2C.1 of the Act imposes obligations on companies with respect to the maintenance of a register of members. By s 168(1), Ramelius was bound to set up and maintain a register of members. Section 169 specifies the information about each member which the register of members must contain, including the member’s name and address and the date on which the entry of the member’s name in the register is made.

42    The Act contains in Div 2 of Pt 7.11 a number of obligations with respect to the transfer of shares in a company. Section 1070A(1)(b)(i) provides that a share in a company “is transferrable … as provided by the company’s … constitution”. Section 1071B(2) binds a company to register a transfer of shares only when provided with proper documents:

(2)    Subject to subsection (5), a company must only register a transfer of securities if a proper instrument of transfer (see subsections (3) and (4)) has been delivered to the company. This is so despite:

(a)    anything in its constitution; or

(b)    anything in a deed relating to debentures.

Note:    Failure to comply with this subsection is an offence (see subsection 1311(1)).

It was not suggested that the share transfer form submitted by the Plaintiffs to Computershare on 27 February 2017 in the present case did not constitute a “proper instrument of transfer” for the purposes of this provision.

43    Section 1071D(1) provides that no distinction is to be drawn in relation to the transfer of shares between applications submitted by a transferor and by a transferee. It provides:

1071D Registration of transfer at request of transferor

(1)    A written application by the transferor of a security of a company for the transferee’s name to be entered in the appropriate register is as effective (for the company’s purposes) as if it were an application by the transferee. The application is subject to the same conditions as it would be if it had been made by the transferee.

44    Section 1071E requires a company refusing to register a transfer of a security of that company to give the transferee notice of the refusal, and to do so within two months of the lodgement of the transfer.

45    Finally, s 1071F, pursuant to which Verguier seeks relief in the present proceedings, provides:

1071F Remedy for refusal to register transfer or transmission

(1)    If a relevant authority in relation to a company:

(a)    refuses or fails to register; or

(b)    refuses or fails to give its consent or approval to the registration of;

a transfer or transmission of securities of the company, the transferee or transmittee may apply to the Court for an order under this section.

(2)    If the Court is satisfied on the application that the refusal or failure was without just cause, the Court may:

(a)    order that the transfer or transmission be registered; or

(b)    make such other order as it thinks just and reasonable, including:

(i)    in the case of a transfer or transmission of shares—an order providing for the purchase of the shares by a specified member of the company or by the company; and

(ii)    in the case of a purchase by the company—an order providing for the reduction accordingly of the capital of the company.

(3)    In this section:

relevant authority, in relation to a company, means:

(a)    a person who has, 2 or more persons who together have, or a body that has, authority to register a transfer or transmission of securities of the company; or

(b)    a person, 2 or more persons, or a body, whose consent or approval is required before a transfer or transmission of securities of the company is registered.

46    Aspects of s 1071F were discussed in Beck v Tuckey [2007] NSWSC 1065; (2007) 213 FLR 152. Brereton J said:

[9]    The purpose of s 1071F was to provide an easier remedy than rectification and to widen the power of the Court to do justice to the parties in the case of a dispute about registration of a transfer [Monardo v Complete Hardware Ltd (1990) 20 NSWLR 489, 2 ACSR 605]. It reflects the principle that the holder of a share has a prima facie right to transfer it [Roberts v Coussens (1991) 25 NSWLR 171; 9 ACLC 1403, 1416-7]. The prevailing view is that the onus of showing an absence of just cause for the purposes of s 1071F remains with the applicant for registration, and that the corporation and the directors do not bear any onus of establishing just cause [Roberts v Coussens; Leaver v Taxi Combined Services (Launceston) Pty Limited (2002) 10 Tas R 362; [2002] TASSC 2 [7]]. However, that is not to say that, once it appears objectively that there is no such cause, an evidentiary onus may not easily shift to the directors to raise some cause [Roberts v Coussens]; and while failure to give reasons does not of itself vitiate the decision or prove there is no just cause, at least where reasons are not required to be given, nonetheless, the failure to provide reasons may, in the context of the whole of the evidence, assist in the drawing of an inference that there is no good reason.

47    The combined effect of s 140(1)(a), the constitution of Ramelius and the provisions in Div 2 of Pt 7.11 of the Act is that the O’Reilly Plaintiffs were entitled to transfer their shares in Ramelius to Verguier and to have effect given to the transfer by having it registered in the Ramelius Share Register. The share transfer form, when executed by both the O’Reilly Plaintiffs as transferors and Verguier as transferee, had to be delivered to the Share Registry of Ramelius. It was common ground that Computershare operated the Share Registry of Ramelius so that delivery to it satisfied the requirement in cl 21.2.3 of the Ramelius constitution.

48    The circumstances in which Ramelius could refuse to register a transfer of shares are confined to those listed in cl 24.2 of the constitution. That subclause also prohibited Ramelius from preventing, delaying or interfering with the registration of a paper-based transfer in registrable form, and cl 23 prohibited it from charging a fee “to register a transfer”.

49    Clause 24.3 of the constitution bound the directors of Ramelius to give notice to “the security holder” of any refusal to register a transfer. Likewise, s 1071E bound Ramelius to give notice to Verguier if it refused to register the transfer.

50    By s 1071F, the Court may order that the transfer of shares from the O’Reilly Plaintiffs to Verguier be registered, as well as any other order which it thinks just and reasonable. However, the exercise of that power is conditioned on the Court being satisfied that the refusal or failure to register the shares was “without just cause”.

51    It is of course open to Ramelius to discharge the obligations imposed on it by the constitution and by the Act by using the services of an agent, such as Computershare. Nevertheless, those obligations remain its obligations so that if Computershare fails to carry out a required function, it is Ramelius, and not Computershare, which fails to comply with its constitutional and statutory obligations.

The agreement between Ramelius and Computershare

52    A redacted copy of the “Registry Services Agreement” (the RSA) made between Ramelius and Computershare in 2016 was in evidence. The parties agreed that this was the form of the agreement in force at all times material to these proceedings.

53    By cl 3.1 of the RSA, Ramelius appointed Computershare exclusively “to provide the Services [to it] in accordance with the terms and conditions of this Agreement”. The “Services” to be provided were those described in Schedule 1. The Services listed in Schedule 1 include:

•    Maintain records of each holding along with related name and address and other relevant details;

•    …

•    Processing transfers, including:

•    off-market transfers

•    on-market transfers.

Thus, the processing of off-market transfers is one of the services which Computershare had contracted to provide to Ramelius.

54    Clause 6.1 requires Ramelius to pay Computershare the “Service Fees” in consideration of “the Services”. The term “Services Fees” is defined in cl 1 as follows:

‘Service Fees’ means the fees payable by the Client to Computershare under this Agreement as set out in schedule 2, and as otherwise agreed between the parties, and includes those fees as reviewed from time to time in accordance with this Agreement.

Schedule 2 does not contain any fee with respect to off-market transfers. However, a schedule to Schedule 1 indicates that a (redacted) fee is payable by Ramelius to Computershare for “off-market transfers”. Counsel for Ramelius indicated that the fee is a fixed fee charged to it by Computershare for each transaction.

55    By cl 9 of the RSA, Computershare agrees to use reasonable endeavours to ensure that the records it keeps are secured against unauthorised access. Subclause 9.3 specifies Computershare’s obligations with respect to the verification of documents:

9.3    Computershare is under no obligation to verify the validity of a document presented to it in relation to this Agreement unless the document reasonably appears on its face to be invalid, (illegible signatures not of themselves making a document invalid) or the circumstances of a particular case are such as would reasonably put Computershare on inquiry as to the possible invalidity of a document, in which case Computershare must take reasonable steps to investigate the validity of the document. Computershare will not incur any liability to the Client for negligence or otherwise if, despite taking such reasonable steps, the document is accepted and subsequently shown to be invalid.

56    By cl 23 of the RSA, Ramelius and Computershare declare their relationship to be that of principal and independent contractor.

57    The RSA does not contain any provision authorising Computershare to charge a shareholder a fee for any service it provides to that shareholder in respect of the provision of a listed service.

Has Ramelius refused or failed to register the transfer of shares to Verguier?

58    It is convenient to consider first the Plaintiffs’ claims for an order under s 1071F.

59    The first issue to be addressed under s 1071F is whether Ramelius, as a “relevant authority”, has refused or failed to register the transfer of shares to Verguier.

60    Ramelius did not contend that it was not a “relevant authority” as defined in s 1071F(3). As Young J noted in Monardo v Complete Hardware Ltd (1990) 20 NSWLR 489 at 491, the reference to “relevant authority” was inserted into a predecessor of s 1071F “to cover as well the situation where there was a person other than the directors whose refusal was frustrating the transfer”.

61    Nor did Ramelius suggest that any significance should be attached to the fact that the Plaintiffs had not made a formal application directly to it to register the transfer of shares. It accepted that Computershare is its agent with respect to the provision of services as defined in the RSA.

62    A finding that Ramelius has refused, or at least failed, to register the transfer of shares from the O’Reilly Plaintiffs to Verguier is inevitable.

63    The Plaintiffs had sought the transfer of the shares using the approved form for that purpose and had completed it with the appropriate details. In accordance with cl 21.2.3, the Plaintiffs had delivered the share transfer form to the Share Registry of Ramelius, together with other information required to prove their respective identities. Putting the “security validation fee” to one side for the moment, neither the constitution of Ramelius nor the Act required the Plaintiffs to do anything further in relation to the provision of the share transfer form.

64    The transfer of shares has not been registered. Computershare, as the agent retained by Ramelius for the purpose, has refused to register the transfer. As it is the instrumentality which Ramelius has put in place to discharge its own obligations and as Ramelius has not otherwise taken any steps to register the transfer, it can be held that Ramelius has refused or, at least failed, to register the transfer.

Was the refusal or failure of Ramelius without just cause?

65    The Plaintiffs have the onus of showing the absence of just cause to which s 1071F(2) refers: Beck v Tuckey at [9].

66    It may be that the adjective “just” in the phrase “without just cause” connotes elements of legitimacy and not just reasonableness or sufficiency. However, as the matter on which the Plaintiffs rely is that neither Ramelius nor Computershare is entitled to charge the security validation fee, it is not necessary to explore those questions in the present case.

67    Several matters bear on the question of whether the refusal/failure of Ramelius was without just cause.

The entity charging the fee

68    A number of submissions at the trial were directed to the significance of it being Computershare, and not Ramelius, which charged the security validation fee. Ramelius submitted that the fee is charged by Computershare pursuant to a separate contract which it makes with those seeking a transfer of shares. Counsel also submitted that Computershare had had no authority from Ramelius, whether express or implied, to charge its shareholders the security validation fee.

69    The Plaintiffs responded to that submission by contending that Computershare is the agent of Ramelius, with the consequence that the conduct of Computershare in dealing with the Share Register of Ramelius is conduct of Ramelius. Accordingly, the act of Computershare in charging a fee was an act of Ramelius.

70    This submission led to a number of further submissions by counsel for the Plaintiffs concerning the existence or otherwise of an agency relationship, together with an examination of the terms of the RSA.

71    In the view I take of the matter, it is not necessary to consider at any length the claimed agency relationship. There are a number of reasons for that.

72    First, Ramelius accepted that the RSA created a relationship of principal and agent between it and Computershare, although it did not accept that Computershare was charging the security validation fee as its agent.

73    Secondly, Computershare is plainly the instrumentality by which Ramelius carries out its obligations with respect to the maintenance of its Share Registry, including the registration of transfers of shares. The use by a company of an agent to maintain its share register is contemplated in s 174 of the Act. See also AXA Asia Pacific Holdings Ltd v Direct Share Purchasing Corporation Pty Ltd [2009] FCAFC 15; (2009) 173 FCR 434 at [10]. As identified earlier, the issue here is whether Ramelius has discharged its obligations. If the instrumentality with which it has contracted to perform those obligations on its behalf does not perform them, then it is Ramelius itself which does not perform those obligations, and that is so regardless of the characterisation of the legal relationship between Ramelius and Computershare.

74    Thirdly, it is also plain that Ramelius cannot, by its contract with Computershare, authorise it to do something on its behalf in relation to the maintenance of its Share Register which Ramelius is prohibited by its own constitution from doing. More particularly, Ramelius cannot authorise Computershare to charge a fee to its shareholders which its statutory contract with its shareholders prohibits it from charging. I add immediately that there was no suggestion that Ramelius had purported, in the RSA, to do such a thing. It had instead agreed itself to remunerate Computershare in respect of each transfer of shares it registered.

75    In short, I do not consider that the fact that it is Computershare and not Ramelius which charges the security validation fee to be a matter which, by itself, exculpates Ramelius.

Does Computershare charge the fee pursuant to a contract with the transferor and transferees?

76    Counsel for Ramelius proffered, initially, a contractual analysis for the charging of the security verification fee. This analysis was linked to the submission that it is Computershare and not Ramelius which charges the fee.

77    Counsel submitted that, putting to one side Mr O’Reilly’s letter of 12 December 2016, the Plaintiffs’ conduct in submitting the share transfer form to Computershare comprised the making of an offer by them to contract with Computershare on the terms and conditions in the printed form, which offer it was open to Computershare to accept by acting on the form. This was so, he submitted, because Computershare had, by making the pro-forma share transfer form available on its website, invited transferors of shares to offer to contract with it on the basis of the printed terms and conditions.

78    Counsel accepted that Mr O’Reilly’s letter of 12 December 2016 which accompanied the first submission of the share transfer form, made it plain that the Plaintiffs were not offering to contract in accordance with the printed terms and conditions. Instead, the Plaintiffs were offering to contract on different terms but, by its letter of 21 December 2016, Computershare had indicated that it was not prepared to contract on the Plaintiffs’ terms. Hence, on that analysis there was no concluded contract between the Plaintiffs and Computershare at that stage.

79    Counsel’s alternative submission and, as I understood it, the one on which he ultimately relied, was that Computershare had made an offer to contract on the printed terms and conditions but that the Plaintiffs had instead proposed revised terms by Mr O’Reilly’s letter of 12 December 2016. Counsel submitted, however, that Mr O’Reilly’s resubmission of the share transfer form on 27 February 2017 without the letter of 12 December 2016 or an equivalent accompanying it meant that he was no longer making a revised offer on the conditions contained in that letter. This had the effect, counsel submitted, that a contract had arisen between the Plaintiffs and Computershare on or about 27 February 2017 by reason of the Plaintiffs’ acceptance of the printed terms and conditions on which Computershare had offered to contract. Pursuant to that contract, the Plaintiffs had agreed to pay the fee of $62.

80    The submission, as I understood it, was that this supported the conclusion that the security validation fee was not a fee “to register a transfer”.

81    On the assumption that a contractual analysis be otherwise appropriate (as to which I express no view), it would not be sensible, in my view, to regard Mr O’Reilly’s resubmission of the same share transfer form on 27 February 2017 as not having been subject to his letter of 12 December 2016. It was all part of a single sequence of events, as the resubmitted share transfer form simply corrected the shortcomings present in the form when originally submitted. There was nothing to indicate that the Plaintiffs had accepted that they should pay the $62 fee and, significantly, that payment did not accompany the resubmitted form. Considered objectively, I consider that it must have been obvious to Computershare that the corrected share transfer form was submitted on the same terms on which it had originally been submitted. In consequence, if a contractual analysis be appropriate, there has been no contract formed between the Plaintiffs and Computershare, because the Plaintiffs have not accepted the terms on which Computershare sought to contract.

82    I also observe that Mr Drew did not suggest in his affidavit that Computershare had a contract with the Plaintiffs with respect to the transfer of the shares, or that the Plaintiffs were in breach of that contract.

83    Ultimately, counsel for Ramelius acknowledged that the question of whether there was a contract between the Plaintiffs and Computershare was a matter “of no real moment”.

The reach of the cl 23 prohibition

84    An initial issue is the determination of the action for which cl 23 prohibits Ramelius charging a fee. It is the charging of a fee “to register a transfer”. Is the registration of a transfer for this purpose the act or acts by which the transfer is actually registered? Alternatively, does it have a broader reach, encompassing for example, acts which are reasonably incidental to, preparatory to, or closely connected with, the registration of a transfer? Alternatively again, does the phrase “to register a transfer” in cl 23 have a meaning equivalent to “in respect of the registration”?

85    The extent of the prohibition effected by cl 23 is to be determined as a matter of contractual construction. As the Ramelius constitution is a commercial contract, it is to be construed and interpreted as such. In particular, the Court should adopt a construction which gives effect to the commercial purpose of cl 23: Stillwell Trucks Pty Ltd v Nectar Brook Investments Pty Ltd [1993] FCA 363, (1993) 10 ACSR 615 at 621. It may be inferred that that purpose is the facilitation of the free transferability of shares, that being the common law presumption: The New Lambton Land & Coal Co Ltd v The London Bank of Australia Ltd [1904] HCA 23; (1904) 1 CLR 524 at 544.

86    That purpose, together with a business-like construction, suggests that the term “to register a transfer” should not be construed narrowly so as to refer only to the final act or acts by which Ramelius registers a transfer. Instead, it is appropriate to construe the term as encompassing those activities reasonably and closely connected with the action of registering a transfer. That is to say, cl 23 prohibits Ramelius from charging any fee for those actions it takes, personally or by its agent, which are incidental to, or reasonably and closely connected with, the process of registering a transfer such that it can be said that those actions form part of the act of registering the transfer.

The characterisation of the security validation fee

87    The Plaintiffs’ principal submission was that Ramelius did not have “just cause” for refusing or failing to register the share transfer until payment of the security validation fee because cl 23 of its constitution prohibited it from charging a fee to register a transfer, and the security validation fee should be characterised as such a charge.

88    Ramelius submitted that the security validation fee did not infringe the cl 23 prohibition because a number of matters indicated that it was charged for a separate service by Computershare and not for its action in registering a transfer:

(1)    the security validation checks for which the fee is charged are carried out at a time anterior to the act of registering the transfer;

(2)    the security validation checks involve “separate and discrete” steps which do not form part of the registration of a transfer;

(3)    there are specific identifiable activities performed by Computershare as part of the security validation “service”. These include it checking the transferor’s identity details as shown on the driver’s licence or passport against the identity shown on the transfer form and a comparison of the signatures on the same documents. In cases of uncertainty, Computershare may make enquiries of the transferor;

(4)    Computershare incurs costs in performing the service;

(5)    the fee is paid by the person receiving the service;

(6)    the fee is proportionate to the cost of the service; and

(7)    the fee charged and retained by Computershare as the entity performing the service, and not by Ramelius itself.

89    In support of these submissions, counsel referred to cases in which the issue has been whether the fee imposed by an authority is to be characterised as a tax or as a fee for service. These included Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62, (1999) 202 CLR 133 at [309] (McHugh J); Air Caledonie International v The Commonwealth of Australia [1988] HCA 61, (1988) 165 CLR 462 at 470; Northern Suburbs General Cemetery Reserve Trust v The Commonwealth of Australia [1993] HCA 12; (1993) 176 CLR 555; Parton v Milk Board (Vic) [1949] HCA 67, (1949) 80 CLR 229; and Knight v Secretary, Department of Justice [2012] VSC 613 at [100]-[101].

90    In Air Caledonie, the issue was whether a fee for immigration clearance imposed on airlines bringing passengers into Australia was a tax for the purposes of s 55 of the Constitution. In holding that the fee was a tax, the High Court said, at 470, that the provision of immigration clearance to incoming passengers who are Australian citizens could not be regarded as the provision of a “service” to, or at the request or direction of, the citizens concerned. Further, the fee did not relate to particular services to be supplied to particular passengers but was intended as an accretion to consolidated revenue in order to offset certain administrative costs.

91    In Northern Suburbs General Cemetery Reserve Trust at 568, Mason CJ, Deane, Toohey and Gaudron JJ held that a training guarantee charge imposed on employers could not be regarded as a fee for services because there was no “sufficient relationship between the liability to pay the charge and the provision of employment related training by the ultimate expenditure of the money collected”.

92    In Knight, one issue was whether a levy imposed on the purchase of cigarettes by prisoners in the publicly managed Victorian prisons constituted a tax or a fee for service. McMillan J rejected the characterisation of the levy as a fee for service as there was “no specific identifiable service linked to the levy” and, to the extent that Corrections Victoria did provide a service which was to be funded by the levy, those services were not “rendered at the direction or request of the prisoners required to pay the levy”, at [101].

93    Counsel for Ramelius submitted that these authorities indicate that a fee may be for a service if the fee is linked to, or relates to, the service and is charged to those who have requested or directed that the service be provided. He contended that these elements are present in these circumstances, even if there is no express request by the transferor/transferee of the shares that the verification checks be carried out.

94    In my opinion, the fee/tax cases are of limited assistance presently, as it is not in issue that the security validation fee is attributed to the provision of a service. The issue is in identifying whether that service forms part of the activity for which Ramelius may not charge a fee.

95    As indicated above, I consider that it is the relationship and, in particular, the closeness of the connection between the verification service, on the one hand, and the registering of the transfer, which is to be assessed for the purpose of charactering the security validation fee.

96    The affidavit of Mr Drew did not identify in detail the actual activities in which Computershare engages when it receives a share transfer form. It is, however, reasonable to infer that it involves a number of steps, including perusing the share transfer form, perusing the identification documents provided with the form, comparing the identity details on the transfer form with those shown on the accompanying documents, and checking that the share transfer form has been completed and executed in an appropriate way. Nor did Mr Drew’s affidavit identify the physical activity in which Computershare engages in order to register the transfer. However, it is reasonable to infer that it involves the making of a data entry by recording the name and address details of the transferee and relocating the name and details of the transferor: see s 169(1), (3) and (7) of the Act.

97    Again, although Mr Drew’s affidavit did not make this plain, it seems likely that the activities in which Computershare engages in relation to a share transfer form are ordinarily carried out in close succession and perhaps even by the same employee. Furthermore, given their nature, it seems reasonable to infer that the checks which Computershare carries out can be completed within a relatively short space of time and, providing the checks are satisfactory, the registration of the transfer effected immediately. I also note that, while Mr Drew deposed that Computershare charges the fee “to cover costs” associated with the security validation checks, he did not identify those costs nor indicate how they are differentiated from the costs associated with checking other aspects of a share transfer form, for example, to ensure that it has been completed appropriately.

98    It may be possible as a matter of analysis to identify sequential steps which employees of Computershare undertake before making the data entry by which the transfer is registered. However, when (as appears to be the case) the activities are of a relatively confined nature, are capable of being completed within a relatively short space of time, are undertaken in close proximity with the act by which the transfer is actually registered, are carried out for the purpose of registering the transfer and for no other purpose, and are otherwise closely connected with registering the transfer, it would, in my opinion, be inappropriate to regard the distinctions between the steps as indicating that they are separate activities. Instead, it is more realistic to regard them as “part and parcel” of the activity of Computershare in registering a transfer.

99    That Computershare incurs costs in carrying out the verification checks, that the amount it charges is proportionate to those costs (assuming that to be the case), that the fee is paid by the parties seeking the transfer, and that Computershare retains the fee do not seem to me to be important considerations. These matters seem to be consequential upon a belief by Ramelius and Computershare that the latter is entitled to charge a security validation fee, despite the term of cl 23 in the Ramelius constitution and despite Computershare being entitled to remuneration from Ramelius for its work in registering a share transfer. They do not assist in the characterisation of the service for which the fee is charged.

100    In summary, I consider that the verification checks which Computershare carries out are so closely connected with the action of registering a transfer that they can be regarded as encompassed by the term “to register a transfer” contained in cl 23. Accordingly, subject to the matters to be considered next, cl 23 precludes Ramelius from charging that fee.

Inconsistency with r 8.14.1 of the ASX Listing Rules?

101    Ramelius contended that if, contrary to its submission, the $62 fee did constitute a fee “to register a transfer” for the purposes of cl 23 of its constitution, that clause was subordinate to LR 8.14.1 of the ASX Listing Rules (LR), with the consequence that it was deemed not to have effect.

102    Ramelius has agreed, as part of its application to be listed on the ASX, to be bound by its LR. An extract of the LR was in evidence. It was not suggested that the Court needed to have a complete copy of the LR.

103    Under s 793B(1) of the Act, the LR of the ASX have the effect of a contract under seal between participants in a licensed market. This includes investors in the companies listed on the ASX and, therefore, the members of Ramelius. Listing Rule 8 of the LR contains requirements concerning share transfers and registration procedures. Listing Rule 8.14 provides (relevantly):

8.14    An entity must not charge a fee for any of the following.

•    Registering transfer documents.

…

•    Noting transfer forms.

…

8.14.1    However, an entity may charge a reasonable fee for any of the following.

…

•    Registering paper-based transfers in registerable form.

104    Listing Rule 8.14.1 was inserted in its present form on 24 January 2011. As noted earlier, Mr Drew deposed that Computershare had commenced charging a fee for “security validation services” in respect of off-market transfers of shares following this change to the LR.

105    Ramelius submitted that LR 8.14.1 provided express authority to it to charge a fee to register a transfer, with the consequence that it was also open to Computershare to charge such a fee. It also submitted that, to the extent of any inconsistency, LR 8.14.1 prevailed over cl 23 in its constitution.

106    In this respect, Ramelius referred to cl 101.6 of its constitution which provides:

If the Company is admitted to the official list of ASX:

…

101.6    if any provision of this constitution is or becomes inconsistent with the Listing Rules, this constitution is deemed not to contain that provision to the extent of the inconsistency.

107    Ramelius submitted that, since 24 January 2011, cl 23 has been inconsistent with LR 8.14.1 in the LR, with the effect that its constitution is now deemed not to contain cl 23.

108    The Plaintiffs raised four matters in answer to this submission.

Is there inconsistency?

109    Counsel for the Plaintiffs submitted first that there is no inconsistency between cl 23 and LR 8.14.1. He submitted that LR 8.14 in its entirety contains a prohibition: a prohibition expressed in absolute terms in its first part and a qualification of the absoluteness of that prohibition in LR 8.14.1. That qualification did not alter the prohibitory character of LR 8.14 as a whole. The consequence is that both cl 23 and LR 8.14 contain prohibitions. The fact that the former is more absolute than the latter, does not mean that the prohibitions are inconsistent.

110    In support of this submission, counsel referred to Re St Barbara Mines Ltd [2000] WASC 300; (2000) 36 ACSR 442. An issue in that case was whether the provisions in the LR concerning the ability of an entity associated with directors to participate in a share issue which were less onerous than the provisions in the company’s own constitution were inconsistent with those provisions for the purposes of cl 2.3(f) of the company’s constitution. Clause 2.3(f) was the counterpart of cl 101.6 in the Ramelius constitution.

111    The issue arose in the following circumstances. Regulation 4.3 of the company’s constitution restricted the circumstances in which a director, or a person associated with a director, could participate in an issue of shares. LR 10.11 contained a (differently expressed) restriction on directors and persons associated with them participating in the issue of shares. The LR 10.11 prohibition was subject to some exceptions, one of which concerned the issue of shares as part of a merger by way of scheme of arrangement. The question in the case was whether the LR provided a comprehensive code of conduct as regards the issue of shares to related parties, which code allowed an issue of shares as part of a merger by way of a scheme of arrangement, so that any different code of conduct in relation to the issue of shares was necessarily inconsistent with it and thereby inoperative by virtue of reg 2.3(f).

112    Steytler J found that there was no inconsistency:

[35]    I am unable to accept that this is so. Nothing in reg 4.3 is inconsistent with Listing Rules 10.11 and 10.12 save in the sense that reg 4.3 raises barriers which are additional to those provided for in the Listing Rules. This is not, in my opinion, the kind of inconsistency which is intended to be referred to in reg 2.3(f). The concern of the person who drafted reg 2.3 was evidently that of ensuring that Taipan's constitution was, and remained, consistent with the Listing Rules, consistency being a condition imposed by Listing Rule 1.1 for the admission of an entity to the Official List. The kind of inconsistency referred to in reg 2.3(f) is, in my opinion, that in which the constitution permits something which the Listing Rules prohibit or the like. However there is no inconsistency, for the purposes of reg 2.3(f), merely because the constitution imposes conditions to the doing of a particular act which are in addition to those imposed by the Listing Rules where those additional conditions are not otherwise inconsistent with anything contained in the Listing Rules.

[36]    I am also not persuaded that there is any substance to the submission, made in the course of the hearing, to the effect that the intention of r 10.11 and r 10.12 is to cover the field in respect of the matters there dealt with, with the consequence that any additional conditions imposed in that regard would be inconsistent with those provisions. There is nothing in regs 10.11 and 10.12 which, in my opinion, should lead to that construction.

113    As is apparent, Steytler J considered that there was no inconsistency for the purpose of a provision like cl 101.6 merely because the company’s constitution imposed conditions for the doing of a particular act which were in addition to those imposed by the LR, when those additional conditions are not otherwise inconsistent with anything contained in the LR.

114    Steytler J also suggested that the kind of inconsistency referred to in reg 2.3(f) is that in which the constitution permits something which the LR prohibits or the like.

115    Counsel for Ramelius submitted that there is an “obvious inconsistency” between cl 23 and LR 8.14.1, because the latter expressly permits a charge which the former prohibits. This form of inconsistency is the obverse of that identified by Steytler J but there is no reason in principle, he submitted, why it is not also encompassed by cl 101.6.

116    In my opinion, the resolution of this particular issue lies in a proper understanding of the relationship between LR 8.14 and LR 8.14.1. The former prohibits an entity absolutely from charging a fee for any of the listed activities. The latter qualifies that absolute prohibition, as indicated by the opening word “however”. It indicates that, despite the absolute prohibition in LR 8.14, an entity may charge a reasonable fee for an activity specified in LR 8.14.1. In context, LR 8.14.1 indicates that, an entity will not act inconsistently with the LR if it charges a “reasonable fee” for one or other of the activities listed in LR 8.14.1.

117    However, there is a distinction between the LR indicating that a particular action is not subject to an absolute prohibition, on the one hand, and an authorisation to an entity to engage in that activity, on the other. The existence or otherwise of an authority of an entity to engage in an activity is to be found in the Act or in the entity’s own constitution. Listing Rule 8.14.1 properly understood does not provide that authority. In other words, LR 8.14.1 does not, as the submissions of Ramelius supposed, have the character of a grant of authority to an entity to charge a reasonable fee for registering a paper-based transfer: it indicates only that the charging of such a fee will not infringe the LR.

118    Accordingly, I consider that there is no inconsistency between cl 23 and LR 8.14.1 on which cl 101.6 of the Ramelius constitution can operate.

An absence of authority

119    The second submission of counsel for the Plaintiffs was that, even if cl 101.6 of the Ramelius constitution did operate to deem cl 23 not to be in the constitution, its effect would be only to remove the prohibition against charging a fee. It would not mean that Ramelius thereby had the power to charge a fee or, more pertinently, the right to withhold registration of a transfer until the fee was paid.

120    I accept that submission.

The effect of s 140(2) of the Act

121    Counsel for the Plaintiffs noted that 150,000 of the 310,000 shares had been acquired on 13 September 2010, that is, before the amendment to LR 8.14.1 which had occurred on 24 January 2011. He submitted that this meant that, even if his first two submissions were not accepted, s 140(2) of the Act had the effect in the present case that the modification to the Ramelius constitution deemed by cl 101.6 could not operate with respect to those shares.

122    Section 140(2) of the Act contains a grandfathering provision:

(2)    Unless a member of a company agrees in writing to be bound, they are not bound by a modification of the constitution made after the date on which they became a member so far as the modification:

…

(c)    imposes or increases restrictions on the right to transfer the shares already held by the member, unless the modification is made:

(i)    in connection with the company’s change from a public company to a proprietary company under Part 2B.7; or

(ii)    to insert proportional takeover approval provisions into the company’s constitution.

123    It is not necessary to consider this submission in any detail because, even if accepted, there remain the 160,000 shares acquired by the Plaintiffs after 24 January 2011. If the charging of the security validation fee was otherwise permitted, it would be payable, at the least, with respect to the transfer of those shares.

Is cl 101.6 ineffective?

124    Counsel for the Plaintiffs submitted that cl 101.6 cannot, in any event, be effective to bring about an alteration of the constitution of Ramelius. This is so because cl 101.6 is inconsistent with s 136(2) of the Act, which indicates that the modification or repeal of a provision in a company’s constitution is to be effected by special resolution: Gosford Christian School Ltd v Totonjian [2006] NSWSC 725, (2006) 201 FLR 424 at [114]; Re Peninsula Kingswood Country Golf Club Ltd [2014] VSC 437 at [68].

125    Given that I uphold the first and second submissions of the Plaintiffs, it is not necessary to consider the merit or otherwise of this submission.

Conclusion on “without just cause”

126    For the reasons given above, I conclude that the Plaintiffs have established that Ramelius has refused or failed, without just cause, to register their share transfer. The entity appointed by Ramelius to maintain its Share Register has refused to register the transfer until it is paid a fee to which it has no entitlement. Ramelius has done nothing to insist that Computershare perform its obligations under the RSA. Instead it has sought, inappropriately, to justify Computershare’s refusal.

Breach of the statutory contract

127    On the basis of the above findings, there is no difficulty in concluding that Ramelius has also breached its statutory contract with the O’Reilly Plaintiffs. Under its constitution, Ramelius did not have any discretion to refuse to register the transfer, as it was not suggested that the application of a “holding lock” as contemplated by cl 24.2 of the constitution has any application presently. As indicated previously, because Computershare is the instrumentality by which Ramelius discharges its obligations with respect to its Registry, the failure by Computershare to register the transfer has the consequence that Ramelius has failed to register that transfer.

128    Clause 24.2 provides (relevantly) that Ramelius must not “prevent, delay or interfere” with the registration of a paper-based transfer. The Plaintiffs did not point to positive conduct by Ramelius preventing, delaying or interfering with the registration of the transfer. However, while the verbs “prevent” and “interfere” in cl 24.2 may connote forms of positive action, the verb “delay” is capable of encompassing an omission to act as well as inactivity. The postponement of performance of an act beyond the point of time when the act should have been performed is delay: William Cable Ltd v Trainor (1957) NZLR 337 at 345.

129    Given the length of time which has lapsed since Mr O’Reilly resubmitted the share transfer form on 27 February 2017, there is no difficulty in concluding that Ramelius has “delayed” the registration of the transfer. The inactivity of Ramelius is made all the more significant by Ramelius’ acknowledgement in the trial that Computershare does not have its authority to charge its shareholders a security validation fee.

The form of relief

130    For the reasons above, I am satisfied that the Plaintiffs have established that Ramelius has refused or failed without just cause to register the transfer of the shares from the O’Reilly Plaintiffs to Verguier and that, by refusing or failing to register the transfer, Ramelius has breached its statutory contract with the O’Reilly Plaintiffs.

131    The Plaintiffs submitted that the Court should grant the relief which they seek, namely, declarations and injunctions. They referred in this respect to Smolarek v Liwszyc [2006] WASCA 50, (2006) 32 WAR 101 in the which the Court of Appeal in the Supreme Court of Western Australia said at [39]:

… The usual remedy for a member who complains of a breach of the statutory contract is a declaration or injunction (see R P Austin and I M Ramsay Ford’s Principles of Corporations Law (12th ed, 2005) at [11.235]) and there seems to be no reason why an injunction of this kind should not be ordered pursuant to the ordinary jurisdiction of the Supreme Court …

132    Counsel for Ramelius emphasised the modest nature of the fee of $62, that the Plaintiffs are not prejudiced by having to pay the fee, that it is sensible for Computershare to carry out verification checks, and that it is not suggested that the amount of the fee goes beyond what is reasonable. Those circumstances indicate, he submitted, that the Plaintiffs’ objection is “arid” with the consequence that the Court ought not grant declaratory or injunctive relief. Counsel also submitted that the Court’s reasons would be a sufficient indication to the parties of the course which should be adopted.

133    The Plaintiffs accepted that the fee of $62 is modest but submitted that the subject matter of the litigation is not only significant to themselves but is also of public importance. In this respect, Mr O’Reilly deposed to other publicly listed entities purporting to charge a fee to transfer their shares, in circumstances like the present, despite the constitutions of those companies containing provisions prohibiting such a charge.

134    The Plaintiffs also referred to the Compliance Update 04/17 issued by the ASX on 11 May 2017 in which the ASX said:

ASX has received a number of complaints from security holders of listed entities about being charged fees by share registries for registering paper-based transfers when the constitution of the entity has a provision (reflecting former restrictions in the Listing Rules) prohibiting such a fee. While Listing Rule 8.14.1 and Guidance Note 28 now permit a reasonable fee to be charged for registering a paper-based transfer, such a fee can only be charged if it does not infringe the entity’s constitution.

It is the responsibility of a listed entity and its registry to ensure that the charging of fees for paper-based transfers is permitted under the entity’s constitution. If it is not, the registry should not charge such a fee or the entity should refund the fee to any security holder who complains about it. Alternatively, the listed entity should modernise its constitution to remove the constraint on charging fees that are now permitted under Listing Rule 8.14.1.

(Emphasis added)

135    In these circumstances, the Plaintiffs submitted that the making of declarations and orders will serve the public interest as indicating to the public generally that companies may not charge fees to register transfers in circumstances like the present.

136    A further matter bearing upon the exercise of the discretion by the Court as to the orders to be made is the submission of Ramelius that, despite its statutory and constitutional obligations, and despite the provisions of the RSA (which do not include an authority to Computershare to charge shareholders of Ramelius a fee for registering a transfer), Computershare is entitled to refuse to register a transfer until the security validation fee is paid. Counsel for Ramelius submitted that Computershare may exercise a choice as to whether or not it will maintain the Share Register of Ramelius by registering transfers if the security validation fee is not paid. Further, Ramelius has done nothing to insist on Computershare performing its obligations. Instead, as noted earlier, Ramelius submits that Computershare is behaving lawfully.

137    In my view, the fact that Ramelius holds these views and has taken the stance makes it appropriate for the Court to make orders giving effect to reasons, including declarations and injunctions.

138    The form of the declarations appropriate to give effect to these reasons requires close consideration. I consider that the parties should be given the opportunity to confer about the form of the declarations and the orders to give effect to these reasons and to make submissions about them. Those declarations and those orders are, generally, to be in the form sought by the Plaintiffs in the Originating Application.

Conclusion

139    For the reasons given above, the application of the Plaintiffs succeeds. I will hear from the parties with respect to the precise form of declarations and orders to give effect to these reasons, indicating that I consider declarations and orders generally in the form sought by the Plaintiffs, but with any suitable modifications, to be appropriate.

140    I will also hear from the parties with respect to costs.

Associate:

Dated:    30 May 2019

SCHEDULE OF PARTIES