Federal Court of Australia

Pilbara Minerals Limited, in the matter of Pilbara Minerals Limited [2025] FCA 890

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth), the time specified by:

(a)    s 6(1)(f) of the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (Instrument) for the second plaintiff to lodge with the Australian Securities and Investment Commission (ASIC) a 'Form 389 - Opt-in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations' (Opt-in Notice) for the financial year ended 30 June 2019;

(b)    s 6(1)(g)(i) of the Instrument for the directors of the second and third plaintiffs to pass certain resolutions required to obtain the benefit of the Instrument; and

(c)    s 6(1)(m)(ii) of the Instrument for the plaintiffs to lodge a certificate relating to the deed of cross-guarantee conforming with the definition of 'certificate' as it appears in the Instrument,

be extended to a date 28 days from the date of these orders, namely 29 August 2025.

2.    Pursuant to s 1322(4)(c) of the Corporations Act, the second and third plaintiffs and each of their current and former directors and officers are relieved from any civil liability, including under ss 188 and 344 of the Corporations Act, in respect of each of their failure to comply with ss 292(1), 298(1), 301(1), 314(1), 315(4) and 319(1) of the Corporations Act in respect of each of the each of the financial years ended 30 June 2019, 30 June 2020, 30 June 2021, 30 June 2022, 30 June 2023 and 30 June 2024 (Relevant Financial Years) to the extent that compliance was required as a result of the following failures to comply with the Instrument:

(a)    the second plaintiff's failure to comply with the requirement in s 6(1)(f) of the Instrument to lodge an Opt-in Notice with ASIC within four months of the end of the second plaintiff's financial year ended 30 June 2019;

(b)    each of the second and third plaintiffs' failure to comply with the requirement in s 6(1)(g)(i) of the Instrument to pass resolutions of the directors of the relevant plaintiff before 30 June 2019;

(c)    each of the second and third plaintiffs' failure to comply with the requirement in s 6(1)(i) of the Instrument to pass resolutions of the directors of the relevant plaintiff for each the Relevant Financial Years;

(d)    the plaintiffs' failure to comply with the requirement in s 6(1)(m)(ii) of the Instrument to lodge a certificate conforming with the definition of 'certificate' as it appears in the Instrument; and

(e)    the first plaintiff's failure to comply with one or more of the requirements in s 6(1)(v) of the Instrument to include certain matters in the notes to the consolidated financial statements prepared and lodged by the first plaintiff with ASIC in respect of the Relevant Financial Years.

3.    A sealed copy of these orders is to be served on ASIC as soon as reasonably practicable.

4.    Any person who claims to have suffered substantial injustice or claims that they are likely to suffer substantial injustice, or who claims that any of the persons who have, by these orders, been relieved of civil liability, have not acted honestly, has liberty to apply to vary or discharge these orders by no later than 4.00 pm AWST on 29 August 2025.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    By an amended originating process filed on 30 July 2025, the plaintiffs apply for orders pursuant to ss 1322(4)(c) and 1322(4)(d) of the Corporations Act 2001 (Cth) (Act). By those orders, the plaintiffs seek extensions of time to do various acts, matters and things under the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (Instrument). The second plaintiff, Pilgangoora Holdings Pty Ltd (PHPL), and the third plaintiff, Pilgangoora Operations Pty Ltd (POPL), and their directors and officers also seek relief from any civil liability arising from failures to comply with various financial reporting obligations under Pt 2M.3 of the Act.

2    On 1 August 2025, I made an order pursuant to s 1322(4)(c) of the Act that PHPL and POPL, and their current and former directors and officers, should be relieved from any civil liability in respect of failures to comply with certain financial reporting obligations imposed under Pt 2M.3 of the Act. I also made orders under s 1322(4)(d) of the Act for the extensions of time sought by the plaintiffs.

3    Following are my reasons for making those and other ancillary orders.

Legal framework and applicable principles

4    Part 2M.3 of the Act, which is entitled 'Financial and sustainability reporting', contains various provisions that impose reporting obligations on, relevantly, 'large proprietary companies'.

5    The phrase 'large proprietary company' is defined in s 45A(3) of the Act, which is in the following terms:

Large proprietary company

(3)    A proprietary company is a large proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

(a)    the consolidated revenue for the financial year of the company and the entities it controls (if any) is $25 million, or any other amount prescribed by the regulations for the purposes of paragraph (2)(a), or more;

(b)    the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is $12.5 million, or any other amount prescribed by the regulations for the purposes of paragraph (2)(b), or more;

(c)    the company and the entities it controls (if any) have 50, or any other number prescribed by the regulations for the purposes of paragraph (2)(c), or more employees at the end of the financial year.

6    Pursuant to reg 1.0.02B of the Corporations Regulations 2001 (Cth), for the 2019-2020 financial year and for later financial years, each of the thresholds in subss (3)(a), (b) and (c) of s 45A of the Act were doubled.

7    In accordance with s 344(1) of the Act, a director of a large proprietary company is obliged to take all reasonable steps to comply, or to secure compliance with, Pt 2M.3.

8    Notwithstanding the reporting obligations that are imposed on large proprietary companies under Pt 2M.3, pursuant to s 341 of the Act, the Australian Securities and Investments Commission (ASIC) may make an order in writing in respect of a specified class of companies, relieving the directors and the companies of all or specified requirements of Pt 2M.3. Relevantly, ASIC made the Instrument pursuant to s 341(1). The Instrument has been in effect since 29 September 2016.

9    The Instrument recognises that there are significant costs associated with preparing financial reports and having those reports audited. Where the Instrument applies, it enables a 'closed group' of companies (a 'closed group' is defined in s 4 of the Instrument to be 'the holding entity and the wholly-owned entities') to prepare and lodge financial statements prepared on a consolidated basis, which is considered to sufficiently meet the information needs of creditors and other stakeholders: Entertainment Publications of Australia Pty Ltd v Australian Securities and Investments Commission [2022] FCA 960 (Entertainment Publications v ASIC) at [10], citing Re SMS Operations Pty Ltd; ex parte SMS Operations Pty Ltd [2021] WASC 191 at [43] and Car Buyers Australia Pty Limited v Australian Securities and Investments Commission, in the matter of Car Buyers Australia Pty Limited [2020] FCA 599 (Car Buyers v ASIC) at [22]-[23]. Amongst other requirements, the Instrument provides that each member of a closed group of companies must be a party to a deed of cross-guarantee that guarantees payment of any debt to creditors of each party to the deed by each other entity.

10    Section 5 of the Instrument is in the following terms:

5    Financial reporting relief for wholly-owned entities

(1)    A company that was party to a deed of cross guarantee at the end of a financial year (relevant financial year) does not have to comply with any of the following requirements of Part 2M.3 of the Act in relation to the financial year:

(a)    the requirement to prepare a financial report and a directors' report under paragraphs 292(1)(b) and (c) and paragraph 292(2)(b);

(b)    the requirement to have the financial report audited and to obtain an auditor's report under subsection 301(1);

(c)    the requirement to report to its members under section 314 within the time required by section 315;

(d)    the requirement to send reports to a member in accordance with a request under subsection 316(1) within the time required by subsection 316(2)

Note: The requirement for a company to lodge a report with ASIC under section 319 of the Act will not apply if the company does not have to prepare or obtain the report: subsection 319(1).

(2)     The directors of a company referred to in subsection (1) do not have to comply with the requirement under section 317 to lay reports before the AGM of the company following the relevant financial year.

11    Section 6 of the Instrument sets out the various matters that must be satisfied before the relief in s 5 is available to a company and its directors. It is unnecessary to reproduce all of those matters. In the context of this matter, it is enough to refer to the following:

6    Where financial reporting relief applies

(1)    The relief in section 5 is available to a company and its directors in relation to a relevant financial year where all of the following are satisfied:

…

Opt-in notice

(f)    if:

(i)    the company did not rely on the relief available under this instrument or ASIC Class Order [CO 98/1418] in respect of the financial year before the relevant financial year; or

(ii)    the holding entity of the company was not the same for the relevant financial year and the financial year before;

the company has lodged by the relevant time a notice signed by a director or secretary with ASIC using ASIC Form 389 as at the date of this instrument, containing a statement that the company has taken advantage of relief under this instrument together with the identity of the holding entity;

Initial procedures in applying for relief

(g)    before the end of the first financial year (first reliance year) in respect of which the company took advantage of relief under this instrument or a previous order (being a financial year at the end of which the company was one of the wholly-owned entities of the holding entity):

(i)    the directors of the company resolved that the company should obtain the benefit of this instrument or a previous order and the directors have not revoked that resolution or resolved to the contrary; and

(ii)    in respect of every other entity (the other entity) which has become a party to the deed of cross guarantee after 13 August 1998 and before the end of the first reliance year (irrespective of whether the other entity has taken advantage of relief under this instrument or ASIC Class Order [CO 98/1418]) the directors of that other entity have made a statement:

Note:    ASIC Class Order [CO 98/1418] was made on 13 August 1998.

(A)    signed by at least one director, and made before the end of the financial year in which it became a party to the deed of cross guarantee; and

(B)     stating that in the directors' opinion immediately before the execution of the deed of cross guarantee or assumption deed by the other entity there were reasonable grounds to believe that the other entity would be able to pay its debts as and when they become due and payable;

…

Annual resolution

(i)    at or about the end of the relevant financial year, the directors of the company:

(i)    considered the advantages and disadvantages associated with the company remaining a party to the deed of cross guarantee and taking advantage of the relief afforded by this instrument; and

(ii)    resolved either:

(A)     that the company should continue to remain a party to the deed of cross guarantee; or

(B)    that the company should seek to revoke the deed of cross guarantee in respect of the company;

Deed of cross guarantee and membership of the closed group

…

(m)    before the end of the relevant financial year:

(i)    an original of:

(A)    the deed of cross guarantee; and

(B)    if the company became party to the deed of cross guarantee by an assumption deed—that assumption deed;

has been lodged with ASIC; and

(ii)    where the lodgement of a deed referred to in subparagraph (i) occurred on or after 1 July 2004—an original of a certificate relating to that deed has also been lodged with ASIC by the relevant time, where that certificate conforms with the definition of certificate as it appears in this instrument or the definition of Certificate as it appeared in a previous order at the time that the deed was lodged;

…

Consolidated financial statements

…

(v)    the notes to the consolidated financial statements:

(i)    include a short statement of the nature of the deed of cross guarantee; and

(ii)    list the parties to the deed of cross guarantee as at the end of the relevant financial year, separately identifying:

(A)    the members of the closed group; and

(B)    the other members of the extended closed group; and

(iii)    give details (including dates) of parties to the deed of cross guarantee which, during or since the relevant financial year, have been:

(A)    added by an assumption deed; or

(B)    removed by a revocation deed; or

(C)    the subject of a notice of disposal; and

(iv)    give details (including dates and reasons) of any entities which obtained relief under this instrument or ASIC Class Order [CO 98/1418] at the end of the immediately preceding financial year but which were ineligible for relief in respect of the relevant financial year; and

(v)    if the consolidated financial statements cover entities which are not members of the closed group, set out the additional consolidation information in respect of the consolidation of the entities which are members of the closed group (after eliminating all transactions between members of the closed group); and

(vi)    if the consolidated financial statements cover entities which are not parties to the deed of cross guarantee, set out the additional consolidation information in respect of the consolidation of the holding entity and those entities which are parties to the deed of cross guarantee and controlled by the holding entity (after eliminating all transactions between parties to the deed of cross guarantee); and

(vii)    if there are any parties to the deed of cross guarantee (other than a trustee or alternative trustee that is not a Group Entity within the meaning of the deed) which are not controlled by the holding entity, set out the additional consolidation information in respect of those parties (either individually or in aggregate);

12    The plaintiffs' case is that because of various failures to comply with s 6 of the Instrument, the second and third plaintiffs have in turn failed to comply with certain provisions in Pt 2M.3 of the Act, specifically, ss 292(1), 298(1), 301(1), 314(1), 315(4) and 319(1) of the Act, which impose obligations to prepare and obtain various financial and other reports.

13    The principles that are applied when courts consider whether to make orders under s 1322(4) of the Act are well known. Insofar as they are relevant to the present application, those principles may be summarised in the following way.

14    An application for an order under s 1322(4) of the Act may be made by any 'interested person'. It is unnecessary to consider the metes and bounds of the meaning of that phrase in the circumstances of this case. All three of the plaintiffs are an 'interested person' as each of them have a real financial interest in the outcome of this application: Entertainment Publications v ASIC at [54], citing Re ex parte; Navitas Bundoora Pty Ltd [2020] WASC 87 at [35] and In the matter of DAC Finance (NSW/Qld) Pty Ltd [2020] NSWSC 182 at [29].

15    Section 1322(4) of the Act confers a broad discretion on the Court to validate instances of non-compliance by companies in certain circumstances: Car Buyers v ASIC at [26]. As French J (as his Honour then was) observed in Wave Capital Ltd [2003] FCA 969 at [29], the powers in s 1322(4):

reflect a broad legislative policy that the law should not inflict unnecessary liability or inconvenience or invalidate transactions because of non-compliance with its requirements where such non-compliance is the product of honest error or inadvertence and where the Court can avoid its effects without prejudice to third parties or to the public interest in compliance with the law.

16    Before making orders under s 1322(4)(c) of the Act, the Court must be satisfied that the person subject to the relevant civil liability concerned acted honestly: s 1322(6)(b). Further, before making orders under s 1322(4)(c) and s 1322(4)(d), the Court must be satisfied that no substantial injustice has been or is likely to be caused to any person: s 1322(6)(c).

17    In a regularly cited passage in ICandy Interactive Limited, in the matter of ICandy Interactive Limited [2018] FCA 533 at [54]-[57], Banks-Smith J said the following about the requirement in s 1322(6)(b) that the Court must find that the person subject to civil liability for the purposes of s 1322(4)(c) acted honestly:

When determining whether someone has acted honestly for the purposes of s 1322 of [the] Act the court looks to an absence of evidence of dishonesty. It also takes into account whether the applicant has taken prompt action to remedy the error.

The concept of acting honestly can embrace the following:

(a)    inadvertence or a failure to turn their mind to the relevant issue;

(b)    an active, but incorrect, consideration of a legal issue as well as failure to consider the issue at all;

(c)    failure to understand or appreciate the significance of non-compliance.

Consideration of the honesty of an applicant also arises in the context of s 1318 of the Act. In Hall v Poolman [2007] NSWSC 1330 Palmer J stated (at [325]):

In my view, when considering whether a person has acted honestly for the purposes of a defence under [Corporations Act] s 1317S(2)(b)(i) or s 1318, the Court should be concerned only with the question whether the person has acted honestly in the ordinary meaning of that term, i.e. whether the person has acted without deceit or conscious impropriety, without intent to gain improper benefit or advantage for himself, herself or for another, and without carelessness or imprudence to such a degree as to demonstrate that no genuine attempt at all has been to carry out the duties and obligations of his or her office imposed by the Corporations Act or the general law. A failure to consider the interests of the company as a whole, or more particularly the interests of creditors, may be such a high degree as to demonstrate failure to act honestly in this sense. However, if failure to consider the interests of the company as a whole, including the interests of its creditors, does not rise to such a high degree but is the result of error of judgment, no finding of failure to act honestly should be made, but the failure must be taken into account as one of the circumstances of the case to which the Court must have regard under [Corporations Act] s 1317S(2)(b)(ii) and s 1318.

The obtaining of advice does not conclusively establish that a person was acting honestly. It is however an important consideration in determining whether proper competent and expert advice was sought and obtained.

(citations omitted)

18    In relation to the power to make an order under s 1322(4)(d) of the Act, in Re Jaxsta Ltd; ex parte Jaxsta Ltd [2018] WASC 390 at [41], Vaughan J (as his Honour then was) favoured a two-stage approach embraced by Barker J in Blaze Asset Pty Ltd v Target Energy Ltd [2009] FCA 698; (2009) 177 FCR 488 at [31]:

[T]he exercise of the power under s 1322(4) [referring to s 1322(4)(d)] involves in effect a two stage process. First, the Court needs to determine whether, having regard to the circumstances of the case and the general objects of the [Corporations Act] it is appropriate to make an order extending a relevant period, or abridging a relevant period. Secondly, if those circumstances are made out, then the Court must address the question whether any substantial injustice has been or is likely to be caused to any person by the making of such an order.

19    The question of substantial injustice also has two aspects. The first requires a court to consider the effect of the irregularity sought to be cured. The second requires consideration of the future effect of the proposed order: Murray River Organics Limited, in the matter of Murray River Organics Limited [2019] FCA 931 at [35]. Further, the reference to 'substantial injustice' in s 1322(6)(c) of the Act is to a real and not insubstantial or theoretical prejudice. Whether there is real injustice requires a weighing of any prejudice if the order is made, against the prejudice which would be suffered by the corporation and its directors and officers if an order was not made: Murray River Organics at [37].

20    A court may be satisfied that no substantial injustice has been or is likely to be caused to any person by the making of the order, where the order would simply preserve the position to which a company would have been entitled, had it provided information as required, and this may be so where there is no evidence that suggests that any third party could have acted to its detriment as a result of the company's non-compliance: In the matter of WSP Australia Pty Ltd [2024] NSWSC 1375 at [41].

21    Even if the relevant mandatory conditions in ss 1322(6)(b) and 1322(6)(c) of the Act are satisfied, the Court retains a discretion to determine whether to make an order under ss 1322(4)(c) and 1322(4)(d). As set out in Entertainment Publications v ASIC at [58] and the cases cited therein, factors which have previously been considered as relevant to the exercise of the discretion in the context of applications involving a failure to comply with the conditions in the Instrument, as here, include:

(1)    the general objects and purposes of the relevant statutory provision within the Act;

(2)    the public interest in ensuring compliance with the Act and the interests of all parties affected;

(3)    the promptness of any action taken to remedy the error; and

(4)    whether ASIC opposes the application.

22    As the chapeau to s 1322(4) of the Act expressly provides, the Court may make orders under that provision unconditionally or on such conditions as the Court imposes. Section 1322(4) also provides that the Court may make such 'consequential or ancillary orders as the Court thinks fit'. Amongst other things, those powers may be employed to ensure that an order under s 1322(4) does not cause substantial injustice by permitting any interested person who may suffer substantial injustice to apply within a set period of time to vary or dissolve a s 1322(4) order: Murray River Organics at [38].

23    In Re Barrick Middle East Pty Limited [2023] WASC 122 at [22]-[23], Lundberg J noted that:

Historically, orders have been made under s 1322(4) [of the Act] to extend time for the lodgment of financial reports with ASIC and to relieve the company and its directors and officers from any civil liability in respect of those contraventions of the Act. I refer, by way of example, to Re Clinical Cell Culture Ltd [2004] FCA 1798; (2004) ACSR 362 (Lee J); Re Phosphate Resources Ltd [2005] FCA 1705; (2005) 56 ACSR 169 (French J); Re Affinity Health Ltd [2006] NSWSC 579; (2006) 58 ACSR 461 (Barrett J); and Owen, in the matter of RiverCity Motorway Pty Limited [2014] FCA 1008 (Greenwood J).

It has been accepted for some years that s 1322(4)(d) [of the Act] applies to time periods specified in [the Instrument]. I refer to Dana Australia (Holdings) Ltd [2006] FCA 355; (2006) 57 ACSR 99 (Finkelstein J) at [8] ‑ [11]. Further, there is a body of authority which has held that s 1322(4) [of the Act] may apply to time periods specified in ASIC Instruments (such as [the Instrument]) where lodgment of a particular document is required to be lodged with ASIC as a condition of relief from compliance with financial reporting requirements. See, for example, Re Murray River Organics Ltd (Anderson J); Re Novonix Ltd [2019] FCA 2198; (2019) 141 ACSR 636 [26] (Jackson J); Re Car Buyers Australia Pty Ltd [2020] FCA 599 [30] (Gleeson J); and Re Flight Centre Technology Pty Ltd [2022] NSWSC 367; (2022) 160 ACSR 651 [29] (Black J).

24    Having summarised the relevant principles, it is then convenient to say something about the relevant factual context in which this application has been made.

Relevant facts

25    The plaintiffs' application is supported by three affidavits. The primary affidavit was affirmed by the company secretary of each of the plaintiffs, Danielle Lee Webber, on 9 July 2025. Ms Webber's affidavit sets out in detail the circumstances that led to the making of the application.

26    Ms Webber affirmed that she made her affidavit from her own knowledge, except where otherwise stated. She also affirmed that where she has made statements that are not from her own knowledge, those statements are made to the best of her knowledge and belief after due enquiry, and that she has set out the source of her knowledge. Ms Webber's affidavit then contains several statements of her belief, as well as hearsay statements made to Ms Webber by several current and former directors, officers and employees of the plaintiffs during inquiries carried out to ascertain why there had been non-compliance with the Instrument.

27    It is obvious that the plaintiffs have approached the application for orders under s 1322(4) of the Act on the assumption that it is an interlocutory proceeding. In that regard, s 75 of the Evidence Act 1995 (Cth) provides that in an interlocutory proceeding, the hearsay rule (expressed in s 59 of the Evidence Act) does not apply to evidence if the party who adduces it also adduces evidence of its source.

28    The plaintiffs' assumption may well be correct in the context of an application for orders extending or abridging time under s 1322(4)(d) of the Act, given that such orders will not in general finally dispose of rights: Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152. However, that assumption may not hold in respect of applications for orders under s 1322(4)(c), as it is arguable that relieving a person of civil liability in respect of relevant contraventions or failures will finally dispose of rights.

29    It is unnecessary to resolve this issue in the circumstances of this case. This is because the plaintiffs have indicated that they do not rely on Ms Webber's evidence of previous representations that were made to her by other persons in order to prove the existence of a fact that it can reasonably be supposed those persons intended to assert by their representations. The plaintiffs instead rely on the fact that the representations were made to Ms Webber to prove that she undertook detailed inquiries, including inquiries of several current and former directors, officers and employees of the plaintiffs, to establish why there had been historical non-compliance with the Instrument. In my view, the fact Ms Webber undertook such a detailed investigation is at least relevant to the question of whether she acted honestly, which is an issue that must be determined under s 1322(6)(b) of the Act. That detailed nature of the investigation is also relevant to the question of whether the Court should exercise its discretion to grant any of the relief sought, having regard to whether the plaintiffs acted reasonably promptly in commencing an appropriate inquiry.

30    Given that Ms Webber's evidence of representations made by other persons is relevant for a non-hearsay purpose, as I have just explained, the hearsay rule then does not apply to those representations by operation of s 60 of the Evidence Act: Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594. Accordingly, to the extent it may be necessary for the purposes of considering whether to make orders under s 1322(4)(c) of the Act, Ms Webber's evidence of out of court representations made by other persons is admitted as evidence of the truth of those representations.

31    To the extent that the plaintiffs rely on evidence of Ms Webber's beliefs and opinions, I have not taken that evidence into account in determining whether to make an order under ss 1322(4)(c) or 1322(4)(d) of the Act. Such evidence is, in my view, inadmissible because of the operation of the provisions in Pt 3.3 of the Evidence Act. I note that a similar approach to evidence of opinions relied on in the context of applications for orders under s 1322(4) was recently taken by Lundberg J in Sprintex Limited [No 2] [2025] WASC 15 at [20]-[21], albeit in the context of the rules of evidence that apply in Western Australia.

32    A second affidavit was affirmed by a solicitor employed by the plaintiffs' solicitors. To the extent that this affidavit contains representations made by ASIC that it does not consent to or oppose the application and does not intend appearing at the hearing of the application, it too seeks to adduce hearsay evidence. However, I will proceed on the basis that such evidence is admissible to prove the fact those representations were made. Again, to the extent that it may be necessary for the purposes of s 1322(4)(c) of the Act, the hearsay rule will therefore not apply to those representations by operation of s 60 of the Evidence Act.

33    A third affidavit, affirmed on 30 July 2025 by the interim chief financial officer of the plaintiffs, Flavio Lino Garofalo, is concerned with establishing that POPL was a 'large proprietary company' for the purposes of s 45A of the Act.

34    Having dealt with issues relating to the admissibility of the evidence relied on by the plaintiffs, it is then necessary to make relevant findings based on that evidence. I will begin with a summary of the relevant factual background to this application, which is based on Ms Webber's evidence.

35    On 6 August 2018, POPL became a 'large proprietary company' for the purposes of s 45A(3) of the Act, during the financial year ended 30 June 2019. This occurred after an internal restructure of the company group the plaintiffs are a part of; the Pilbara Minerals Limited group (PLS group). PHPL, as the sole shareholder of POPL, therefore also became a large proprietary company during the financial year ended 30 June 2019. Based on Ms Garofalo's evidence, POPL and PHPL have both continued to be large proprietary companies for each relevant financial year.

36    Pilbara Minerals Limited (PLS), which is the parent company of the PLS group, engaged and received legal advice from a large law firm (not the plaintiffs' current solicitors) about obtaining consolidated group relief under the Instrument. This was done to relieve PHPL and POPL from relevant financial reporting requirements in Pt 2M.3 of the Act.

37    On 17 September 2018, PLS, PHPL and POPL executed a deed of cross-guarantee in the required form and in accordance with s 5(1) of the Instrument. That deed was lodged with ASIC on or about 21 September 2018, under cover of the required ASIC form. The deed was also lodged with what purported to be a lawyer's certificate in accordance with s 6(1)(m) of the Instrument.

38    An 'opt-in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations' (Opt-in Notice) was lodged with ASIC by POPL on or around 27 November 2018, in accordance with s 6(1)(f) of the Instrument. However, no Opt-in Notice was lodged on behalf of PHPL.

39    Since the execution of the deed in September 2018, the plaintiffs, their boards of directors and the PLS executive leadership team have been operating as if PHPL and POPL were not required to comply with the financial reporting requirements in Pt 2M.3 of the Act. Accordingly, neither PHPL and POPL (or their officers) have complied with the financial reporting obligations in Pt 2M.3 of the Act since the deed of cross-guarantee was executed. It is clear that this has occurred because of a mistaken assumption that PHPL and POPL had obtained consolidated group relief pursuant to the Instrument.

40    PLS acquired Latin Resources Pty Ltd (LRPL) in February 2025. At that time, steps were taken to find out whether LRPL was required to be a party to the deed of cross-guarantee. It was in this context that, in May and June 2025, PLS identified that PHPL and POPL had not complied with certain requirements of the Instrument. Specifically, it was identified that:

(a)    both PHPL and POPL had failed to pass resolutions at or about the end of each relevant financial year to continue to remain a party to the deed of cross-guarantee, as was required by s (6)(1)(i) of the Instrument; and

(b)    PHPL had not lodged an Opt-in Notice in accordance with s 6(1)(f) of the Instrument.

41    When these issues were discovered, PLS:

(a)    instructed its current solicitors to provide advice about any non-compliance with the Instrument and the steps that should be taken to rectify any failures; and

(b)    undertook an audit of the PLS group's compliance with the Instrument to determine if there were any other instances of non-compliance.

42    As a result of the audit, PLS identified the following further non-compliances:

(a)    before the end of the financial year ended 30 June 2019 (being the first financial year in respect of which PHPL and POPL sought to take advantage of relief under the Instrument), each of the boards of PHPL and POPL failed to pass resolutions resolving that the companies should obtain the benefit of the Instrument, as is required by s 6(1)(g)(i) of the Instrument;

(b)    the lawyer's certificate lodged with the original deed of cross-guarantee did not comply with the definition of a 'certificate' as required by s 6(1)(m)(ii) of the Instrument, as it omitted the words 'the provider of the certificate does not know and has no reason to suspect that the deed has not been duly executed by the company'; and

(c)    the notes to the consolidated financial statements of PLS for each of the relevant financial years have only partly complied with the requirements of s 6(1)(v) of the Instrument, even though those notes were prepared by PLS's internal finance team and audited by a large accounting firm.

43    As a result of those failures to comply with the Instrument, both PHPL and POPL have not obtained consolidated group relief pursuant to the Instrument and have therefore not complied with their financial reporting obligations under Pt 2M.3 of the Act in each of the relevant financial years.

44    PLS also undertook searches of relevant current and archived records to see if there was any further information about why the PLS group companies had not complied with the Instrument as detailed above. Further, between 2 and 8 July 2025, Ms Webber contacted certain former directors, officers and employees to obtain further information about the non-compliances. Unfortunately, the relevant employees, directors and officers who were involved in the restructure of the PLS group have since left the employment of PLS. This, together with the time that has now elapsed, has made it difficult to establish exactly why the Instrument was not complied with.

45    Against that background, it is then necessary to make findings in relation to the specific failures to comply with the Instrument. It is convenient to make those findings in the context of five topics, consistently with the way in which the plaintiffs' written submissions were helpfully framed. Those five topics are as follows:

(1)    PHPL's failure to lodge an Opt-in Notice: s 6(1)(f) of the Instrument.

(2)    PHPL's and POPL's failure to pass an initial prescribed resolution for the financial year ended 30 June 2019: s 6(1)(g)(i) of the Instrument.

(3)    PHPL's and POPL's failure to lodge a lawyer's certificate that fully complied with the definition of 'certificate' in the Instrument: s 6(1)(m)(ii) of the Instrument.

(4)    PHPL's and POPL's failure to pass prescribed annual resolutions for each of the relevant financial years: s 6(1)(i) of the Instrument.

(5)    PLS' failure to include one or more of the matters in the notes to its consolidated financial statements for each of the relevant financial years: s 6(1)(v) of the Instrument.

PHPL's failure to lodge an Opt-in Notice (s 6(1)(f) of the Instrument)

46    As explained above, while POPL lodged an Opt-in Notice as required by s 6(1)(f) of the Instrument, PHPL has never done so.

47    The evidence of Ms Webber (including the correspondence and documents attached to her affidavit) makes it clear that before 2021, the relevant officers and employees of PLS did not appreciate that PHPL was a 'large proprietary company', as defined in s 45A(3) of the Act.

48    During 2021, PLS acquired Ngungaju Lithium Operations Pty Ltd (NLO). PLS obtained advice from a large firm of lawyers in connection with that acquisition. Correspondence identified by Ms Webber between PLS representatives and those lawyers reveals that advice was sought about whether NLO was required to become a party to the deed of cross-guarantee, together with PHPL and POPL. PLS also sought advice at that time about whether PHPL should lodge an Opt-in Notice.

49    The correspondence also demonstrates that PLS obtained advice that PHPL was a 'large proprietary company' and that an Opt-in Notice should be prepared and lodged. However, that advice was not acted upon. It appears that the advice was overlooked, probably because a person from PLS, who was a party to the correspondence, left PLS soon after the advice was received. It may also have been overlooked as PLS was focusing on issues relating to the acquisition of NLO at the relevant time.

50    I note that no legal advice was given to any of the plaintiffs that PHPL should have lodged an Opt-in Notice within four months after the end of the financial year ended 30 June 2019, or that PHPL had been in breach of its financial reporting obligations under the Act for each of the subsequent years because it had failed to lodge an Opt-in Notice. Further, no advice was provided that PHPL should file an application pursuant to s 1322 of the Act.

51    The various inquiries undertaken by Ms Webber have failed to uncover any direct evidence to establish why PHPL has never lodged an Opt-in Notice. However, based on Ms Webber's evidence, I infer that the representatives of PLS and PHPL were initially operating on the mistaken belief that PHPL was not required to lodge an Opt-in Notice. As I have already explained, later, and despite receiving advice that PHPL was required to lodge an Opt-in Notice, that requirement was overlooked.

PHPL's and POPL's failure to pass an initial prescribed resolution for the financial year ended 30 June 2019 (s 6(1)(g)(i) of the Instrument)

52    While undertaking the audit to which I have earlier referred at [41] of these reasons, representatives of PLS identified that the directors of PHPL and the directors of POPL had not passed a resolution before the end of the financial year ended 30 June 2019 resolving that the relevant company should obtain the benefit of the Instrument, as required by s 6(1)(g)(i) of the Instrument. However, despite the searches and inquiries referred to at [44] of these reasons, there is no direct evidence that establishes why the necessary initial resolutions were never passed.

53    What is clear is that in June 2018, PLS obtained legal advice that the PLS group was required to procure each entity of the closed group (which included PHPL and POPL) to sign resolutions, solvency statements and a deed of cross-guarantee. However, that advice did not deal with the content of the resolutions and it did not expressly refer to s 6(1)(g)(i) of the Instrument.

54    Towards the end of June 2018, a board paper was provided to the board of directors of the PLS group. One of the purposes of that board paper was to obtain approval for PLS to enter into a deed of cross-guarantee with PHPL and POPL so as to obtain consolidated group relief, which would then relieve PHPL and POPL from the requirement to prepare and lodge audited financial statements under the Act. Although the board paper identified certain requirements for obtaining consolidated group relief, it did not refer to the requirement to pass initial resolutions of the kind required by s 6(1)(g)(i) of the Instrument.

55    In all the circumstances, I infer that initial resolutions were not passed by the boards of each of PHPL and POPL in accordance with s 6(1)(g)(i) of the Instrument because the respective boards of were unaware of that requirement. Based on the evidence before me, it is clear that it only became apparent that there had been a failure to comply with s 6(1)(g)(i) when consideration was being given to the question of whether LRPL was required to become a party to the deed of cross-guarantee: see [40] of these reasons.

PHPL's and POPL's failure to lodge a lawyer's certificate that fully complied with the definition of 'certificate' in the Instrument (s 6(1)(m)(ii) of the Instrument)

56    While carrying out the audit to which I have already referred at [41] of these reasons, representatives of PLS identified that the lawyer's certificate that was lodged with the deed of cross-guarantee did not comply with the definition of a 'certificate' in s 4 of the Instrument, as required by s 6(1)(m)(ii) of the Instrument. This is because it did not include the words 'the provider of the certificate does not know and has no reason to suspect that the deed has not been duly executed by the company'.

57    In circumstances in which a certificate signed by a lawyer, as required by s 6(1)(m)(ii) of the Instrument, had in fact been lodged, and given the highly technical nature of the deficiency in the certificate, I infer that the person who signed the certificate simply failed to appreciate that the certificate was required to include a statement to the effect that they did not know and had no reason to suspect that the deed had not been duly executed by the company.

PHPL's and POPL's failure to pass prescribed annual resolutions for each of the relevant financial years (s 6(1)(i) of the Instrument)

58    As I have already mentioned (at [40] of these reasons), after PLS acquired LRPL in February 2025, consideration was given to whether LRPL should become a party to the deed of cross-guarantee. It was in that context that representatives of PLS identified in late May 2025 that the directors of both PHPL and POPL had failed to pass resolutions at or about the end of each relevant financial year that each company should continue to remain a party to the deed. Those resolutions were required by s 6(1)(i) of the Instrument.

59    Ms Webber's evidence establishes that the requirement imposed by s 6(1)(i) to pass regular resolutions was not the subject of any specific legal advice. Further, it also establishes that the inquiries that have been conducted on behalf of the plaintiffs have failed to uncover any direct evidence that explains why the resolutions required by s 6(1)(i) of the Instrument were not passed.

60    In all of the circumstances, I infer that PHPL and POPL did not pass resolutions in accordance with s 6(1)(i) of the Instrument because none of their directors, officers or employees were aware that those resolutions were required.

PLS' failure to include one or more of the matters in the notes to its consolidated financial statements for each of the relevant financial years (s 6(1)(v) of the Instrument)

61    After undertaking the audit to which I have referred at [41] of these reasons, representatives of PLS identified that the notes to PLS' consolidated financial statements for each relevant financial year have only partly complied with the several requirements of s 6(1)(v) of the Instrument. Although an investigation has been carried out to determine why PLS failed to comply with s 6(1)(v), nothing has been identified that directly explains that oversight.

62    Based on the evidence of Ms Webber, I find that the notes to the consolidated financial statements of PLS for each relevant financial year were prepared by PLS's internal finance team and that they were audited by KPMG, a large accounting firm. Further, the format and structure of the notes to the consolidated financial statements of PLS are similar for each relevant financial year. I also find that KPMG provided an unqualified independent auditor's report for inclusion in each annual report. In that regard, KPMG had audited the financial reports, including the notes to the consolidated financial statements. Further, KPMG had expressed opinions that each financial report was in accordance with the Act and gave a true and fair view, including of the PLS group's financial position as at the end of each relevant financial year and of its financial performance for the year then ended, and that the reports were compliant with Australian Accounting Standards and the Corporations Regulations.

63    In all of those circumstances, I infer that PLS did not appreciate that the notes to PLS' consolidated financial statements for each relevant financial year only partly complied with the several requirements of s 6(1)(v) of the Instrument and, influenced by KPMG's audit reports, assumed that the relevant notes were relevantly compliant.

64    Having set out what I consider to be the necessary factual findings, I now turn to deal with the question of whether the orders sought by the plaintiffs should be made.

Should the orders sought by the plaintiffs be made?

65    Relevantly, the plaintiffs seek the following orders:

1.    Pursuant to s 1322(4)(d) of the Act, the time specified by:

(a)    s 6(1)(f) of the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (Instrument) for the Second Plaintiff to lodge with the Australian Securities and Investment Commission (B) a 'Form 389 – Opt-in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations' (Opt-in Notice) for the financial year ended 30 June 2019;

(b)    s 6(1)(g)(i) of the Instrument for the directors of the Second and Third Plaintiff to pass certain resolutions required to obtain the benefit of the Instrument; and

(c)    s 6(1)(m)(ii) of the Instrument for the Plaintiffs to lodge a certificate relating to the deed of cross guarantee conforming with the definition of 'certificate' as it appears in the Instrument,

be extended to a date 28 days from the date of these orders.

2.    Pursuant to section 1322(4)(c) of the Act, the Second and Third Plaintiffs and each of their current and former directors and officers are relieved from any civil liability, including under ss 188 and 344 of the Act, in respect of their failure to comply with ss 292(1), 298(1), 301(1), 314(1), 315(4) and 319(1) of the Act in respect of each [of the] financial years ended 30 June 2019, 30 June 2020, 30 June 2021, 30 June 2022, 30 June 2023 and 30 June 2024 (each a 'relevant financial year' doe the purposes of the Instrument (Relevant Financial Years)), to the extent that compliance was required as a result of the following failures to comply with the Instrument:

(a)    the Second Plaintiff's failure to comply with the requirement in s 6(1)(f) of the Instrument to lodge an Opt-in Notice with ASIC within four months of the end of the Second Plaintiff's financial year ended 30 June 2019;

(b)    each of the Second and Third Plaintiffs' failure to comply with the requirement in s 6(1)(g)(i) of the Instrument to pass resolutions of the directors of the relevant Plaintiff before 30 June 2019;

(c)    each of the Second and Third plaintiffs' failure to comply with the requirement in s 6(1)(i) of the Instrument to pass resolutions of the directors of the relevant Plaintiff for each of the Relevant Financial Years;

(d)    the Plaintiffs' failure to comply with the requirement in s 6(1)(m)(ii) of the Instrument to lodge a certificate conforming with the definition of 'certificate' as it appears in the Instrument; and

(e)    the First Plaintiff's failure to comply with one or more of the requirements in s 6(1)(v) of the Instrument to include certain matters in the notes to the consolidated financial statements prepared and lodged by the First Plaintiff with ASIC in respect of the Relevant Financial Years.

3.    A sealed copy of these orders is to be served on ASIC as soon as reasonably practicable and upon service of these orders, ASIC is to include these orders on its database.

4.    For a period of 28 days from the date of these orders, any person who claims to have suffered substantial injustice or is likely to suffer substantial injustice by the making of any or all of these orders has liberty to apply to vary or discharge them within that period.

Orders 1(a), (b) and (c)

66    The plaintiffs submit that orders 1(a), 1(b) and 1(c) should be made under s 1322(4)(d) of the Act. In each case, the relevant 'act, matter or thing', for which extensions of time are sought, for the purposes of s 1322(4)(d), concern obligations imposed by the Instrument to lodge documents with ASIC (orders 1(a) and 1(c)) and to pass resolutions (order 1 (b)). As I have noted earlier in these reasons at [23], s 1322(4)(d) is capable of being applied to extend time periods specified in the Instrument for the lodgement of documents as a condition of relief from compliance with financial reporting requirements in Pt 2M.3 of the Act.

67    Having regard to the evidence of Ms Webber, I am satisfied that the various failures to comply with s 6(1)(f), s 6(1)(g)(i) and s 6(1)(m)(ii) of the Instrument were due to inadvertence. There is certainly nothing to suggest that any of those failures were the result of any deliberate disregard for the law. As I have explained earlier, the initial failure to lodge an Opt-in Notice in relation to PHPL was plainly due to a misunderstanding as to whether PHPL was a 'large proprietary company'. When later advice was received in 2021 that suggested that PHPL was required to lodge an Opt-in Notice, that advice appears to have been overlooked in circumstances in which the person who received the advice ceased employment with PLS shortly thereafter, and where people are likely to have been distracted by issues relating to the acquisition of NLO.

68    The failures by PHPL and POPL to pass initial resolutions as required by s 6(1)(g)(i) of the Instrument also appear to have been the result of inadvertence, in circumstances in which external legal advisers had not drawn attention to all of the relevant obligations under the Instrument.

69    The failure to lodge a certificate that complied with the definition of 'certificate' in s 4 of the Instrument can properly be described as a technical failure, and one that was, in any event, substantially contributed to by the external lawyer who signed the certificate and upon whose expertise the plaintiffs were entitled to rely.

70    I am satisfied that no substantial injustice has been or is likely to be caused to any person by reason of the plaintiffs' failures to comply with s 6(1)(f), s 6(1)(g)(i) and s 6(1)(m)(ii) of the Instrument. In that regard, there is no evidence before me that any person has suffered any prejudice because of those failures, or because the plaintiffs were not thereby relieved from their obligations under Pt 2M.3 of the Act. Ms Webber's evidence, which I accept, is to the effect that she is not aware of any shareholder or creditor being misled by any of the compliance issues, nor is she aware of any complaints being made by any shareholder or creditor with respect to any of those matters.

71    The evidence also satisfies me that no relevant prejudice is likely to be caused to any person. In that regard I accept the plaintiffs' submissions that:

(a)    the deed of cross-guarantee was operational throughout each of the relevant financial years, and PLS, PHPL and POPL conducted themselves on the basis that it was binding on each of them;

(b)    the deed of cross-guarantee is disclosed on the register maintained by ASIC with respect to each of the plaintiffs;

(c)    PLS's annual reports for each of the relevant financial years disclosed the existence of the deed of cross-guarantee and contained a statement to the effect that by entering the deed, the wholly owned companies were relieved from the requirement to prepare a financial report and directors' report under the Instrument;

(d)    PLS is a well-capitalised business, and has, during each of the relevant financial years, been able to pay its debts as and when they are due;

(e)    PHPL and POPL have remained solvent;

(f)    PLS's annual reports for each of the relevant financial years contained a directors' declaration stating that there are reasonable grounds to believe that the parties to the deed of cross-guarantee will be able to meet any obligations or liabilities to which they are, or may become, liable by virtue of the deed of cross-guarantee; and

(g)    PLS's annual reports for each of the relevant financial years contained financial statements audited by KPMG disclosing the financial position of the PLS group and provided a true and fair view of the financial position and performance of PLS.

72    As the plaintiffs submit, it is unlikely in those circumstances that any creditor, shareholder or other third party would have been unable to properly understand the plaintiffs' financial affairs. In any event, order 1 would simply preserve the position the plaintiffs would have been in had they complied with the Instrument.

73    On the other hand, if order 1 was not made then PHPL and POPL would be required to obtain audited financial reports for all of the relevant financial years, at significant cost. That cost would be incurred even though the plaintiffs had executed a deed of cross-guarantee, and in circumstances in which consolidated financial statements were lodged for each of the relevant financial years without any issue having been raised.

Order 2

74    Order 2 is sought under s 1322(4)(c) of the Act. Specifically, an order is sought relieving PHPL and POPL, and each of their current and former directors and officers, from any civil liability, including under ss 188 and 344 of the Act, in respect of each of PHPL and POPL's failures to comply with ss 292(1), 298(1), 301(1), 314(1), 315(4) and 319(1) of the Act for each of the relevant financial years, to the extent that such compliance was required because of failures to comply with s 6 of the Instrument.

75    Section 292(1) of the Act relevantly provides that large proprietary companies are to prepare a financial report and a directors' report for each financial year. Section 298(1) relevantly requires that all companies prepare a directors' report for each financial year, and in that sense, at least for large proprietary companies, appears to duplicate the obligation under s 292(1).

76    Section 301(1) of the Act relevantly provides that a company must have its financial report for a financial year audited in accordance with Div 3 of Pt 2M.3, and that it must obtain an auditor's report. Section 314 requires that company must report to its members within the time required by s 315. Finally, s 319(1) relevantly provides that companies that are required to prepare or obtain a report for a financial year (which includes reports under s 292(1), s 298(1), and s 301(1)), must also lodge those reports with ASIC.

77    Because there were various failures to satisfy the requirements of s 6 of the Instrument, PHPL and POPL were not relieved of their obligations to comply with the relevant requirements of ss 292(1), 298(1), 301(1), 314(1), 315(4) and 319(1) in Pt 2M.3 of the Act for the relevant financial years. This gives rise to the potential for civil liability. Further, by at least the operation of s 188 and s 344 of the Act, respectively, those failures may also give rise to an exposure to civil liability for any persons who have acted as a secretary or director of PHPL and POPL at relevant times.

78    As I have observed earlier in these reasons, before an order can be made under s 1322(4)(c) of the Act, I must first be satisfied that each person who is subject to the civil liability concerned has acted honestly: s 1322(6)(b). I must also be satisfied that no substantial injustice has been or is likely to be caused to any person: s 1322(6)(c).

79    For the following reasons, I am satisfied that PHPL and POPL, and each of their respective directors and secretaries who occupied those positions at all relevant times for each of the relevant financial years, acted honestly. Based on Ms Webber's evidence, I am satisfied that apart from the plaintiffs themselves, the only relevant persons who had an active involvement in connection with ensuring compliance with the Instrument were Ms Webber herself (as a company secretary), Alexander Eastwood (as company secretary of all of the plaintiffs from 2016 to November 2023) and Kenneth Brinsden (as a director of all of the plaintiffs from 2016 to July 2022).

80    There is no evidence before me that any of those persons, or indeed any other person, acted dishonestly in connection with any of the relevant failures to comply with obligations under Pt 2.3M of the Act due to a failure to satisfy s 6 of the Instrument. On the contrary, although the evidence suggests that Mr Eastwood and Mr Brinsden cannot not now recall why s 6 of the Instrument was not fully complied with, the only reasonable inference is that such non-compliance was due to inadvertence and because on several occasions officers of the plaintiffs relied on what has turned out to have been incomplete external professional advice.

81    I am fortified in reaching the conclusion that the persons subject to potential civil liability acted honestly because:

(a)    a deed of cross-guarantee was in fact executed and lodged with ASIC;

(b)    only some of the requirements of s 6 of the Instrument were not satisfied; and

(c)    no evidence was uncovered in a comprehensive investigation into the reasons for the failures to satisfy s 6 of the Instrument to suggest that anyone acted dishonestly, or that the non-compliances were the result of anything other than inadvertence and reliance on incomplete or erroneous professional advice.

82    In relation to Ms Webber, I am satisfied that to the extent that she is responsible for any of the plaintiffs' failures to satisfy all of the requirements of s 6 of the Instrument, they were the result of human error, and without any dishonesty. I am also satisfied that she has not acted in wilful disregard of the law and that she has not been imprudent. Ms Weber has candidly accepted responsibility, where appropriate. A finding that Ms Webber acted dishonestly would not sit at all well with the fact that Ms Webber and the PLS group conducted a comprehensive investigation to find out whether there was any other failures to comply with s 6 of the Instrument, or with the fact that Ms Webber has been actively involved in making voluntary disclosures of all relevant failures to ASIC and to the Court.

83    I am also satisfied, for essentially the same reasons I have already given at [70]-[72] of these reasons, that in the context of the plaintiffs' application for an order under s 1322(4)(c) of the Act, no substantial injustice has been or is likely to be caused to any person.

84    Although I am satisfied of the necessary preconditions in s 1322(6) of the Act for the exercise of the power to make an order under ss 1322(4)(c) and 1322(4)(d), the Court retains a discretion to make such orders.

85    I am of the view that it is appropriate to exercise the discretion to make the orders sought. In that regard I accept the submissions made on behalf of the plaintiffs that the following factors weigh in favour of making the orders sought:

(a)    The steps that were actually taken by the plaintiffs in an effort to comply with the Instrument were, in substance, sufficient for the Instrument to achieve its object. In that regard, it is important to note that a deed of cross-guarantee was executed and lodged, and consolidated financial statements were prepared in circumstances in which there is no reason to question their accuracy or sufficiency.

(b)    The plaintiffs acted promptly in commencing inquiries into the non-compliances and in bringing this application.

(c)    On 20 June 2025, each of the boards of PHPL and POPL considered the advantages and disadvantages associated with the relevant company remaining a party to the deed of cross-guarantee and taking advantage of the relief afforded by the Instrument, and passed resolutions resolving that each PHPL and POPL remain a party to the deed, in accordance with s 6(1)(i) of the Instrument.

(d)    Ms Webber instructed the persons responsible for preparing PLS's 2025 annual report to ensure the notes to the consolidated financial statements comply with the requirements of s 6(1)(v) of the Instrument.

(e)    The plaintiffs have demonstrated appropriate concern in relation to the non-compliances and have taken steps to remedy the non-compliances and to ensure future compliance with the Instrument. Specifically, Ms Webber, as company secretary, has adopted a new practice in an effort to avoid such non-compliance in the future.

(f)    ASIC has been served with the originating process, Ms Webber's affidavit and the plaintiffs' principal written submissions in support of the application for orders under s 1322(4) of the Act. ASIC has subsequently confirmed receipt of those documents and indicated that it did not consent or oppose the application, and that it did not intend to appear at the hearing of the application.

86    I am mindful of the fact that this application has been dealt with, in effect, on an ex parte basis. This means that the Court has been heavily reliant on the plaintiffs to bring forward all evidence that may be relevant to the making of orders under s 1322(4) of the Act. While I do not suggest that there have been any material non-disclosures, one way to ensure that no substantial injustice has been or is likely to be caused to any person, and to provide an opportunity for an interested person to raise issues concerning the honesty of any person who is subject to civil liability, is to make an ancillary order permitting any such person to apply within a set period to vary or dissolve the such an order: Murray River Organics at [38].

87    Accordingly, I think that it is appropriate to make orders 3 and 4 as sought by the plaintiffs. However, as ASIC is not a party to and did not appear at the hearing of this application, it is not appropriate to make orders that compel it to take any steps. Accordingly, I made an ancillary order under s 1322(4), that the first plaintiff is to serve a sealed copy of this Court's orders on ASIC as soon as reasonably practicable, with the expectation that ASIC will then include them on its database. I made a further order that any person who claims to have suffered substantial injustice or claims that they are likely to suffer substantial injustice, or who claims that any of the persons who have been relieved of civil liability, have not acted honestly, has liberty to apply to vary or discharge this Court's order within 28 days from the date of the orders.

Associate:

Dated:    5 August 2025