Federal Court of Australia

Anteris Technologies Global Corp, in the matter of Anteris Technology Global Corp [2026] FCA 1333

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (the Act), in respect of the 44,068 CHESS Depositary Interest in the Plaintiff that were issued on 10 July 2026 (Impacted CDIs), the period of 5 business days referred to in s 708A(6)(a) of the Act be extended to 31 July 2026.

2.    Pursuant to s 1322(4) of the Act, it is declared that a notice under s 708A(5)(e) of the Act given to the Australian Securities Exchange Limited (ASX) in respect of the Impacted CDIs by the date provided for in order 1 be deemed to take effect as if it had been given to the ASX on 10 July 2026.

3.    Pursuant to s 1322(4)(a) of the Act, it is declared that any offer for sale or sale of any Impacted CDIs during the period after their issuance on 10 July 2026 to the date of this order is not invalid by reason of:

(a)    any failure of a notice under s 708A(5)(e) of the Act to exempt the sellers from the obligation of disclosure under the Act; and

(b)    the sellers’ consequent failure to comply with s 707(3) or s 727(1) of the Act.

4.    Pursuant to s 1322(4)(c) of the Act, any person to whom any of the Impacted CDIs were issued, or have been sold, and who have in turn on-sold any of those Impacted CDIs up until the date of this order, is relieved in whole from any civil liability in respect of:

(a)    any failure of a notice under s 708A(5)(e) of the Act to exempt the sellers from the obligation of disclosure under the Act; or

(b)    the sellers’ failure to comply with s 707(3) or s 727(1) of the Act.

5.    The Plaintiff, as soon as reasonably practicable, is to serve a sealed copy of these orders on:

(a)    the Australian Securities and Investments Commission (ASIC);

(b)    the ASX; and

(c)    each person to whom the Impacted CDIs were issued.

6.    As soon as reasonably practicable, the Plaintiff is to publish an announcement to the ASX in which a copy of these orders made is included and place a copy of these orders on the website to remain there for at least 28 days.

7.    For a period of 28 days from the date of publication of a copy of these orders on the ASX market announcements platform, the ASIC or 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 to discharge the orders within that period.

8.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

INTRODUCTION

1    The Plaintiff, Anteris Technology Global Corporation has applied for orders under s 1322 of the Corporations Act 2001 (Cth) (the Act) to cure a failure, under s 708A(5)(e), to lodge what is commonly called a “cleansing notice” in respect of the issue and on-sale of CHESS Depository Interests (CDIs).

2    In short, the effect of the omission under s 708A(5)(e) of the Act, is that any on-sales of the CDIs within 12 months would require disclosure to investors under Pt 6D.2 of the Act. That may thereby place certain on-sellers in breach of their disclosure obligations for on-sales that occurred after 10 July 2026 following the issue of the new CDIs, as a “cleansing notice” was not issued at that time.

3    The orders seek to reverse the effect of that omission by way of the ameliorating effect of the orders and declarations sought pursuant to s 1322 of the Act. This matter has been brought on urgently in the duty list.

BACKGROUND

4    Anteris is a healthcare company which designs and develops medical devices to restore health heart function. It does so, with a view to a profit. Anteris is dual listed. It has shares of common stock listed on the Nasdaq Global Market (NASDAQ). Anteris also has CHESS Depositary Interests representing underlying shares of common stock (CDIs) listed on the Australian Stock Exchange (ASX).

5    Anteris has issued a number of warrants to sophisticated and professional investors, which can be exercised to convert into CDIs which are tradeable on the ASX. On 6 July 2026, Anteris received notices on behalf of two particular investors exercising their respective warrants to convert 44,068 warrants into CDIs (Impacted CDIs). The Impacted CDIs were issued to the investors on 10 July 2026. 17,400 CDIs were issued to the first investor and 26,668 were issued to the second investor.

6    On 15 July 2026 Anteris made a certain announcement to the ASX regarding the 44,068 CDIs issued on 10 July 2026. Anteris’ Chief Financial Officer (CFO) has provided an affidavit in support of this application. The CFO gives evidence that he was aware that Anteris had an obligation to issue a cleansing notice within five business days from the date of issue. The cleansing notice is required, the CFO explains, to exempt the investors and any subsequent sellers of the Impacted CDIs from certain disclosure obligations under the Act which would otherwise apply if the Impacted CDIs were on-sold within 12 months of issue. It is within the CFO’s responsibilities to oversee market notifications of this kind, and he has previously overseen the issuance of cleansing notices by Anteris, in similar circumstances, that have occurred here with these two investors.

7    A cleansing notice was required to be given by s 708A(5)(e) of the Act by 17 July 2026 in relation to the 10 July issue of the Impacted CDIs. However, as the CFO explains he did not issue a cleansing notice within the timeframe, it was inadvertently overlooked. The CFO explains that he became aware of the omission on 30 July 2026, when other investors who had exercised warrants and the corresponding ASX announcement was being prepared for the issue of those further CDIs. It then occurred to the CFO that the two investors, in relation to the Impacted CDIs, had not had a cleansing notice issued. A cleansing notice was not issued until 31 July 2026. It was issued promptly after it became apparent that such a notice had not been issued. As such, this application, if the belated cleansing notice has work to do, relates to a discrete period of time.

STATUTORY FRAMEWORK

8    Generally, Pt 6D.2 of the Act imposes disclosure obligations concerning the issue and sale of securities or shares. In particular, ss 706, 707, 708, 708A and 727 are relevant to the present context and application. Section 706 provides:

Issue offers that need disclosure

An offer of securities for issue, other than a CSF offer, needs disclosure to investors under this Part unless section 708 or 708AA says otherwise.

9    Relevantly, s 707(1) and s 707(3) provide as follows:

Sale offers that need disclosure

Only some sales need disclosure

(1)    An offer of securities for sale needs disclosure to investors under this Part only if disclosure is required by subsection (2), (3) or (5).

…

Sale amounting to indirect issue

(3)    An offer of a body’s securities for sale within 12 months after their issue needs disclosure to investors under this Part if:

(a)    the body issued the securities without disclosure to investors under this Part; and

(b)    either:

(i)    the body issued the securities with the purpose of the person to whom they were issued selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them; or

(ii)    the person to whom the securities were issued acquired them with the purpose of selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them;

and section 708 or 708A does not say otherwise.

10    Section 707(3) of the Act is relevant to the possible on-sales, which may have already occurred. The evidence does disclose that there may have been some on-sales of the Impacted CDIs that have already taken place. It was submitted and I accept that is almost impossible to know whether or not there have been further on-sales of the Impacted CDIs.

11    It is necessary to consider the relevant parts of ss 708(8) and (11) of the Act, which provide as follows:

Sophisticated investors

(8)    An offer of a body’s securities does not need disclosure to investors under this Part if:

(a)    the minimum amount payable for the securities on acceptance of the offer by the person to whom the offer is made is at least $500,000; or

(b)    the amount payable for the securities on acceptance by the person to whom the offer is made and the amounts previously paid by the person for the body’s securities of the same class that are held by the person add up to at least $500,000; or

(c)    it appears from a certificate given by a qualified accountant no more than 6 months before the offer is made that the person to whom the offer is made:

(i)    has net assets of at least the amount specified in regulations made for the purposes of this subparagraph; or

(ii)    has a gross income for each of the last 2 financial years of at least the amount specified in regulations made for the purposes of this subparagraph a year; or

(d)    the offer is made to a company or trust controlled by a person who meets the requirements of subparagraph (c)(i) or (ii).

Note 1:     Section 9 defines qualified accountant.

Note 2:    A financial services licensee has obligations under Division 3 of Part 7.7 when providing financial advice. ASIC has a power under section 915C to suspend or cancel a licensee's licence.

…

Professional investors

(11)    An offer of securities does not need disclosure to investors under this Part if it is made to:

(a)    a person covered by the definition of professional investor in section 9 (except a person mentioned in paragraph (e) of the definition); or

(b)    a person who has or controls gross assets of at least $10 million (including any assets held by an associate or under a trust that the person manages).

12    It is submitted that these exemptions applied to the direct issue of the Impacted CDIs by Anteris. It is also necessary to consider s 708A(1), (5) and (6), which provide as follows:

Sale offers that do not need disclosure

Sale offers to which this section applies

(1)    This section applies to an offer (the sale offer) of a body’s securities (the relevant securities) for sale by a person if:

(a)    but for subsection (5), (11) or (12), disclosure to investors under this Part would be required by subsection 707(3) for the sale offer; and

(b)    the securities were not issued by the body with the purpose referred to in subparagraph 707(3)(b)(i); and

(c)    a determination under subsection (2) was not in force in relation to the body at the time when the relevant securities were issued.

…

Sale offer of quoted securities-case 1

(5)    The sale offer does not need disclosure to investors under this Part if:

(a)    the relevant securities are in a class of securities that were quoted securities at all times in the 3 months before the day on which the relevant securities were issued; and

(b)    trading in that class of securities on a declared financial market on which they were quoted was not suspended for more than a total of 5 days during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the day on which the relevant securities were issued; and

(c)    no exemption under section 111AS or 111AT covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph (b); and

(d)    no order under section 340 or 341 covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph (b); and

(e)    either:

(i)    if this section applies because of subsection (1)—the body gives the relevant market operator for the body a notice that complies with subsection (6) before the sale offer is made; or

(ii)    if this section applies because of subsection (1A)—both the body, and the controller, give the relevant market operator for the body a notice that complies with subsection (6) before the sale offer is made.

(6)    A notice complies with this subsection if the notice:

(a)    is given within 5 business days after the day on which the relevant securities were issued by the body; and

(b)    states that the body issued the relevant securities without disclosure to investors under this Part; and

(c)    states that the notice is being given under paragraph (5)(e); and

(d)    states that, as at the date of the notice, the body has complied with:

(i)    the provisions of Chapter 2M as they apply to the body; and

(ii)    sections 674 and 674A; and

(e)    sets out any information that is excluded information as at the date of the notice (see subsections (7) and (8)).

Note 1:    A person is taken not to contravene section 727 if a notice purports to comply with this subsection but does not actually comply with this subsection: see subsection 727(5).

Note 2:     A notice must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see sections 1308 and 1309. The body has an obligation to correct a defective notice: see subsection (9) of this section.

13    It is s 708A(5)(e), and s 708A(6) that are of direct relevance to the present application by Anteris. By application of s 708A(5), the seller does not need to comply with the disclosure requirements of Pt 6D.2 if the issuer provided a cleansing notice in relation to the securities or shares.

14    The cleansing notice must have been given by the issuer to the ASX within five days of the issue of the securities or shares and before the sale offer was made. However, if an issuer of securities or shares does not issue a valid cleansing notice, as Anteris did not do so prior to 31 July 2026, then there is a prospect that the party to whom the securities are issued must, itself, cause such disclosure to be given if that party wishes to on-sell those securities within 12 months: see s 707(3) of the Act. There is then a prospect of a contravention of the Act and the commission of an offence if such disclosure does not occur: see Re Spectur Ltd (2019) 136 ACSR 542; [2019] FCA 867 at [2] (Colvin J).

15    In this regard, s 727(1) provides as follows:

Offering securities without a current disclosure document

Offer of securities needs lodged disclosure document

(1)    A person must not make an offer of securities, or distribute an application form for an offer of securities, that needs disclosure to investors under Part 6D.2 unless a disclosure document for the offer has been lodged with ASIC.

16    That provision may have application in the present case in conjunction with the mandate set out in s 707(3), as there has been no cleansing notice issued prior to 31 July 2026.

17    The purpose of the provision is to prevent circumvention of the policy of Ch 6D by the issue of securities to a party to whom disclosure is required under s 708 or s 708AA, and that party then offering those securities for sale to investors without disclosure: see Re Golden Gate Petroleum Ltd (2010) 77 ACSR 17; [2010] FCA 40 at [27] (McKerracher J). I gratefully adopt the description in relation to the requirements of Pt 6D.2 of the Act provided by Beach J in 333D Limited, in the matter of 333D Limited [2021] FCA 349 at [19]-[20], in which his Honour observed as follows:

19    In summary, Pt 6D.2 of the Act requires the provision of information about securities when an offer to issue or sell them is made. In particular, an offeror of securities for issue must make disclosure to investors under Pt 6D.2, unless s 708 says otherwise (s 706), and an offeror of securities for sale within 12 months after their issue must make a disclosure to investors under Pt 6D.2 of the Act if (s 707(3)):

(a)    the shares were issued without disclosure; and

(b)    they were issued by the company or acquired by the recipient for the purpose of being sold; and

(c)     ss 708 and 708A do not say otherwise.

20    An exception applies to an on-sale of shares where the issuer has provided a cleansing notice within 5 days of the issue of the securities, and before the sale offer is made (ss 708A(5) and (6)). If issued, such a notice allows quoted securities to be on-sold without further compliance with the disclosure requirements of Pt 6D.2. But if an issuer of shares does not issue a valid cleansing notice, then there is a prospect that the party to whom the shares are issued must itself cause such disclosure if it wishes to on-sell those shares within 12 months (s 707(3)). Further, there is the prospect of a contravention of the Act and the commission of an offence if such disclosure does not occur (s 727(1)).

18    In this context, given the terms of Anteris’ application, it is worth setting out s 1322(4)(a), (c), (d), (5) and (6):

(4)    Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

(a)    an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation;

…

(c)    an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);

(d)    an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

(5)    An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence.

(6)    The Court must not make an order under this section unless it is satisfied:

(a)    in the case of an order referred to in paragraph (4)(a):

(i)    that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;

(ii)    that the person or persons concerned in or party to the contravention or failure acted honestly; or

(iii)    that it is just and equitable that the order be made; and

(b)    in the case of an order referred to in paragraph (4)(c)—that the person subject to the civil liability concerned acted honestly; and

(c)    in every case—that no substantial injustice has been or is likely to be caused to any person.

19    The principles applicable to the exercise of the Court’s discretion under s 1322 of the Act are well established. They were recently summarised by Hill J in Re Superior Resources Ltd [2025] WASC 505 at [20] as follows:

(a)    the prescriptive requirements of the wording in s 1322(4) and the pre-conditions in s 1322(6) need to be satisfied;

(b)    the court retains a discretion under s 1322(4) as to whether it makes the orders sought;

(c)    the power that has been granted to the court under s 1322 of the Act reflects the 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; and

(d)    limitations to these broad powers should not be readily implied. This is because the section is remedial in character and should be applied broadly.

(footnotes omitted)

20    In considering whether to grant the relief sought under s 1322(4)(d) of the Act, first, the Court considers whether it is appropriate to make an order extending the relevant period under the Act having regard to the circumstances of the case and the general objects of the Act. Second, the Court considers whether any substantial prejudice has been or is likely to be caused by the making of the proposed order: Re Variscan Mines Ltd [2026] WASC 139 at [13] (Hill J).

CONSIDERATION

21    The CFO of Anteris inadvertently failed to lodge a cleansing notice following the issue of the Impacted CDIs. I am satisfied that it could be properly described as an accidental slip or oversight. It was not a blatant or flagrant disregard of the company’s obligations. The CFO has relevantly given evidence that he was familiar with the requirements in relation to the issuing of a cleansing notice (effectively being the requirements of ss 706, 708, 708A and 707 of the Act). In this regard, the CFO arranged for a review of other securities transactions which required Anteris to issue a cleansing notice. On all these other occasions, the CFO deposes that Anteris issued each cleansing notice within the timeframe required by the Act. Specifically, in the period from December 2024 to 31 July 2026, Anteris issued eight cleansing notices relating to the other securities transactions involving the issuance of shares and common stock upon exercise of unlisted warrants or options held by investors, the issuance of shares and CDIs in connection with private placements for capital raisings conducted in Australia, and the issuance of common stock in connection with registered offerings undertaken in the United States of America.

22    It has been Anteris’ practice to issue a cleansing notice in the past when issuing new CDIs in connection with private placements for capital raisings conducted in Australia. It is the CFO’s responsibility to oversee and ensure that the cleansing notices are lodged. The cleansing notices in relation to the Impacted CDIs should have been lodged by 17 July 2026.

23    On 31 July 2026, the CFO had the cleansing notice issued, in the following context.

24    On 30 July 2026, on becoming aware of the failure to issue the required cleansing notice, the CFO sought advice from Anteris’ solicitors, Jones Day, to confirm his understanding of Anteris’ obligation to issue a cleansing notice in respect of the Impacted CDIs and in relation to potential steps to be taken by Anteris to rectify the omission to issue the notice.

25    On 31 July 2026, the following was undertaken by the CFO or at his direction:

(a)    at around 8:29 am, the CFO sent an email to Ms Monique Burley of the ASX notifying her that due to an administrative oversight, Anteris did not lodge a cleansing notice within the time required with respect to the Impacted CDIs and that Anteris intended to immediately commence procedures to rectify the issue;

(b)    at around 9:58 am, the CFO sent a letter via email to Ms Burley requesting a trading halt in Anteris’ securities pending its consideration of the inadvertent non-lodgement of the cleansing notice. The letter also explained that Anteris intended to seek relief from the Federal Court of Australia in respect of this omission;

(c)    at around 7:04 pm, Ms Burley responded to the CFO’s email, noting that Anteris went into a trading halt that morning pending the outcome of the Federal Court of Australia relief application and that no additional action was required;

(d)    at around 9:59 am, Anteris announced a trading pause to the market;

(e)    at around 10:09 am, Anteris announced a trading halt to the market;

(f)    at around 10:59 am, Anteris announced to the market that it intended to lodge a cleansing notice in relation to the issue of the Impacted CDIs, notwithstanding the time for such lodgement had elapsed;

(g)    at around 11:24 am, Anteris lodged a cleansing notice under s 708A(5)(e) of the Act in relation to the Impacted CDIs, albeit the lodgement was later than required by s 708A(6)(a); and

(h)    at around 10:46 pm, the CFO sent a letter to the Australian Securities and Investments Commission (ASIC) via email notifying ASIC of Anteris’ intention to seek relief from the Federal Court of Australia.

26    On Saturday 1 August 2026, the CFO sent an email to Ms Burley of the ASX providing notice of and dial-in details for the hearing of Anteris’ proposed application to the Federal Court of Australia. That is this hearing. These details were also provided to ASIC at around 1.57pm.

27    That chronology of events satisfies me that prompt attention to this matter has been given by Anteris once the inadvertent oversight became apparent. Anteris has brought this application expeditiously and without delay.

28    The CFO has given evidence, supported by relevant documents, that the written request to the ASX, on behalf of Anteris, for a trading halt has been submitted. This was to be pending an announcement by Anteris in relation to a Court order under s 1322 of the Act deeming the cleansing notice provided to the ASX on 31 July 2026 to be effective from the date of issue of the Impacted CDIs, the subject of the cleansing notice.

29    The trading halt request sought that the trading halt remain in place until the earlier of such time as the company makes the further announcement or the commencement of trading on 4 August 2026. That is tomorrow. The ASX market announcement of the trading halt is in evidence before the Court dated 31 July 2026. The ASX market announcement dated 31 July 2026 describing that suspension is also in evidence.

30    Section 1322 of the Act is remedial in nature and confers a broad power on the Court: see Weinstock v Beck (2013) 251 CLR 396; [2013] HCA 14 at [39] (French CJ), [53], [56] (Hayne, Crennan and Kiefel JJ) and [60] (Gageler J). Furthermore, s 1322(4), is “cast in very broad terms”, and “is not to be hedged about by any implied limitation”: Weinstock, at [53] and [55], respectively.

31    As explained by French J, in Re Wave Capital Ltd (2003) 47 ACSR 418; [2003] FCA 969 at [29], regarding the powers under s 1322(4) of the Act:

29    As may be seen from the range of these powers there is no unifying theme which links the provisions of Part 9.5 beyond their common subject matter which is the powers of the courts. Sections 1318, 1322 and 1325D however may be taken to 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. That broad policy does not authorise the Court lightly to set aside the requirements of the Act where they have not been observed. Each application for the exercise of the Court's relieving power will require consideration of all the circumstances of the case to ensure that the indulgence sought is appropriate and does not undermine the requirements of the Act. Like the discretion to validate invalid share issues under s 254E, the power conferred by s 1322 must be exercised having regard to the requirements of the purposes of the Act and any other relevant statutes whose application may be in issue. It must also be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with statute law and company constitutions. Evidence of a blatant disregard of the provisions of the Act or the constitution of the company may lead to refusal of relief: Re Onslow Salt Pty Ltd (2003) 198 ALR 344; 45 ACSR 322 and cases there cited. The provision is however remedial in character and should be given a liberal construction: Re Insurance Australia Group Ltd (2003) 45 ACSR 702 at 707, [27] per Lindgren J citing Re Australian Koyo Ltd (1984) 8 ACLR 928 at 930 and Elderslie Finance Corporation Ltd v Australian Securities Commission (1999) 11 ACSR 157 at 160.

32    However, having made those observations, the power under s 1322 is not to be exercised merely for the asking, and it is to be exercised, having regard to the general purposes of the Act, including the provisions in respect of which relief is sought; the interests of all parties affected; and the public interest in ensuring compliance with the Act.

33    The relevant exercise of the discretionary power can be described, as outlined earlier, as involving a two-step process. First, is it appropriate for the Court to make some or other of the orders under s 1322(4) of the Act? Second, are the conditions in s 1322(6) satisfied?

34    Section 1322(6)(c) provides that any order under s 1322(4) of the Act must not be made unless it is satisfied “that no substantial injustice has been, or is likely to be, caused to any person”. However, even if the requirements of s 1322(4) and s 1322(6) are satisfied, a discretion remains as to whether to make the orders sought. In that regard, it is necessary to take into account whether Anteris has taken prompt action to remedy the error. As already observed, I am satisfied that Anteris has taken such prompt action. Further, the public interest is a relevant consideration in the exercise of discretion. Anteris has sought orders, as described, pursuant to s 1322, to negate the effect of the omission of the cleansing notice.

35    In my view, the evidence establishes a sufficient basis for the exercise of my discretion to make the orders sought. Furthermore, there are no discretionary factors against making the proposed orders, subject to one minor amendment.

36    Anteris seeks four substantive orders, and orders in relation to notification, liberty to apply, and costs. It is appropriate and convenient to step through each of those four substantive orders that are sought and express why each is appropriate.

37    Before considering those four orders, it is necessary to observe that Anteris is an interested person for the purposes of s 1322(4) of the Act and therefore has standing to bring this application. Anteris is an interested person as it is the issuer of the Impacted CDIs.

38    In relation to order 1 as is sought, s 1322(4)(d) of the Act provides that an order may be made extending the period for doing any Act, including where the relevant period has ended before the application was made. The Court is empowered to declare that the period of five business days from the date of issue of the Impacted CDIs, which is the period within which a cleansing notice had to be issued pursuant to s 708A(6)(A), is actually 31 July 2026, which is the date upon which the cleansing notice was in fact lodged with the ASX. The purpose of this is to effectively validate the cleansing notice actually given on 31 July 2026.

39    In relation to the order as sought pursuant to s 1322(4)(a), it provides that the Court can make orders declaring that any act, matter, or thing done under the Act, is not invalid by reason of any contravention of the Act. This empowers the Court to declare that any of the sales of the Impacted CDIs during the period after their issue to the date of the Court’s orders is not invalid by reason of the initial failure to lodge the cleansing notice or the seller’s failure to make disclosure. It may also be appropriate to issue a declaration in relation to s 1322(4) of the Act, which provides that the Court may make such consequential or ancillary orders to other orders made under s 1322(4): see Re Imdex Ltd [2020] WASC 298 at [54] (Hill J) and the authorities cited therein. The Court is empowered to declare that the cleansing notice given on 31 July 2026 is deemed to take effect as if it had been given to the ASX on the day that the Impacted CDIs were issued, which is a date before any of the possible on-sales occurred as contemplated by s 708A(5)(e).

40    Such orders would apply to any past on-sales of the Impacted CDIs – exempting such sales from disclosure obligations that would otherwise apply. In relation to the orders under s 1322(4)(a), orders under that provisions must not be made (see s 1322(6)(a)(i)-(iii)) unless I am satisfied that, (i) the act, matter or thing is essentially of a procedural nature or (ii) that the person concerned in or party to the contravention or failure, acted honestly or (iii) that it is just and equitable that the order be made. The evidence in relation to Anteris’ failure to lodge the cleansing notice as deposed to by the CFO is set out above. The failure to lodge the cleansing notice as required was the result of an inadvertent and honest oversight.

41    It is sufficient to satisfy the requirements of s 1322(6)(a) by the satisfaction of subsection (ii), that is that the person concerned or the party to the contravention or the failure which resulted was as a result of acting honestly. The three matters required to be satisfied in s 1322(6)(a)(i) to (iii) are alternatives. In this regard, I am satisfied that the subsection has been met as the CFO acted honestly.

42    In relation to the orders sought regarding s 1322(4)(c), it provides that the Court may make an order relieving a person from any civil liability in respect of a contravention of the provisions of the Act. I am satisfied that in these circumstances such an order is appropriate.

43    This empowers the Court to order that any person to whom any of the Impacted CDIs were issued or may have been sold or who may have, in turn, on-sold any of those Impacted CDIs up until the date of these orders of the court is relieved from any civil liability because of the failure to lodge a cleansing notice and the seller’s failure to make disclosure. Such orders also require satisfaction of s 1322(6)(b). It requires that the Court must not make an order unless satisfied that the person subject to the civil liability concerned acted honestly.

44    In any event, given the honest actions of the CFO and, I infer, the honest understanding of holders in relation to any on-sales, it does appear that even if the Impacted CDIs have been sold or even on-sold, there is a basis to infer satisfaction of s 1322(6)(b).

45    Finally, such orders may not be made under s 1322(4) unless I am satisfied that no substantial injustice has been or is likely to be caused to any person: s 1322(6)(c) of the Act. In the circumstances of this case, it is difficult to anticipate what, if any, injustice may have been suffered by those who have inadvertently contravened the disclosure obligations. However, as it is proposed that liberty to apply be granted in the orders as sought by Anteris, I need not dwell on this issue.

46    Any potential injustice can be accommodated by giving liberty to apply to any person who may claim to suffer substantial injustice by reason of the orders, to vary or discharge those orders within a limited time period. Any potential for injustice can be remedied by such a person invoking the liberty to apply provisions in the orders of the Court: see Micro-X Limited, in the matter of Micro-X Limited [2019] FCA 1154 at [12(h)] (Moshinsky J) and 333D at [40].

47    Anteris has also provided evidence of having served ASIC and the ASX a short time prior to the hearing of this application. Responses from each of ASIC and the ASX were received. Those responses were tendered and marked as exhibits on the hearing of this application.

48    The ASX responded relevantly to the question of whether the ASX intends to appear at the hearing by observing that the ASX’s supervisory remit is to monitor and enforce compliance with the ASX Listing Rules. The ASX did not intend to appear at the hearing.

49    In ASIC’s response, it stated with reference to its own guidelines that the time it had to consider the documents provided was insufficient for it to form an opinion. As such, the ASIC requested what it described as 28 days to object to any orders made. Counsel for Anteris submitted that the appropriate way to accommodate ASIC’s request was to include express reference to ASIC in the liberty to apply orders.

50    Although it might be unnecessary to expressly mention ASIC, given its role in relation to the Act, in the circumstances of this case where ASIC has expressly requested 28 days to object to the orders made, I accept the submissions by counsel that it is appropriate and preferable to expressly include ASIC in the liberty to apply provisions of the orders so that ASIC can exercise the liberty to apply.

51    For all of those reasons, I am satisfied that it is appropriate in these circumstances to make orders broadly in accordance with those sought by the Plaintiff. The minor amendment is that I have deleted proposed order 7 which was sought, for the Plaintiff to make a request forthwith of the ASX for the trading halt to be lifted. Counsel did not press for that order to be made, and it seems clear that the Plaintiff will make such a request promptly on the provision of these orders.

Associate:    

Dated:    8 September 2026