Federal Court of Australia

Rosherville Pty Ltd v ASX Limited [2026] FCA 1515

ORDERS

THE COURT ORDERS THAT:

1.    Pending the hearing and determination of the applicant’s application for leave under s 237 of the Corporations Act 2001 (Cth) (Act), the Applicant is granted leave, on an interim basis under s 241(1)(a) of the Act, to commence proceedings on behalf of the respondent against:

(a)    Roderic Holliday-Smith;

(b)    Thomas Damian Roche;

(c)    Dominic John Stevens;

(d)    Peter Hiom; and

(e)    Timothy Hogben,

substantially as set out in the draft statement of claim exhibited at pages 1048–1098 of Exhibit RJG-1 to the affidavit of Roderick John Gibson affirmed on 8 October 2026, noting that such leave extends to varying the draft statement of claim (if the applicant decides to do so) by including ASX Limited as an applicant rather than as the first respondent.

2.    The applicant is not to take any further step in the proceedings without leave of the Court.

3.    The Court notes that the applicant undertakes to the Court to pay the reasonable costs and expenses on the party-party basis incurred by the respondent in connection with Order 1.

4.    Pursuant to ss 37AF(1) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), the following parts of the affidavit of Justin William Ward affirmed on 8 October 2026 be marked confidential on the Court file and not be published, disclosed, or accessed except pursuant to an order of the Court, until further order:

(a)    para 22(c);

(b)    paras 24(a) and 24(d);

(c)    the table at para 28; and

(d)    exhibit JWW-2.

The court notes that:

5.    Rosherville Pty Ltd undertakes that, if interim leave is granted for it to file, but not serve, the statement of claim, it will not cause or otherwise take any steps to cause the statement of claim filed on behalf of ASX Limited to be served without the leave of the Court.

6.    LCM Funding Pty Ltd undertakes that, if interim leave is granted for the applicant to file, but not serve, the statement of claim, it will not cause or otherwise take any steps to cause the statement of claim filed on behalf of ASX Limited to be served without the leave of the Court.

7.    LCM Funding Pty Ltd undertakes that it will:

(a)    pay and indemnify ASX Limited against all reasonable costs, charges and expenses incurred by the applicant on behalf of the respondent in bringing and maintaining the claim in the Federal Court of Australia in substantially the same form as the “Proposed D&O Proceeding” (as defined in para 9 of the affidavit of Justin William Ward dated 8 October 2026); and

(b)    pay and indemnify ASX Limited against any order for costs, including any orders for security for costs, made against it in this proceeding and the “Proposed D&O Proceeding”.

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

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    By its originating application filed on 9 October 2026, the applicant (Rosherville) seeks interim relief under s 241(1)(a) of the Corporations Act 2001 (Cth) (Act), for leave to commence proceedings on behalf of the respondent (ASX) against former directors and officers of ASX, and take no further steps, pending the determination of its application for leave under s 237 of the Act.

2    Rosherville is a shareholder of ASX. In its proposed statement of claim, Rosherville alleges that former directors and officers of ASX contravened s 180(1) of the Act in respect of the ASX’s Clearing House Electronic Subregister System (CHESS) Replacement Project. It is alleged that former directors of ASX approved funding releases in respect of the CHESS Replacement Project in circumstances where they failed to inform themselves and other directors of ASX in relation to the project. The first of those funding approvals is alleged to have arisen on 14 October 2020. Accordingly, Rosherville submits that the interim relief sought by this application is necessary to protect certain claims against the expiry of the six-year limitation period in s 1317K of the Act. Without deciding the question of when the limitation period begins to run, there does appear to be a very real risk of at least part of the proposed proceedings being statute-barred if interim relief is not granted.

3    It is well established that an order granting leave for derivative proceedings to be commenced can be made on an interim basis, where a grant of leave is necessary, without a full exploration of the factual issues (including those arising under s 237(2) of the Act) in order to preserve any limitation period in respect of the proceedings: see In the matter of Sunnya Pty Ltd [2023] NSWSC 225 at [6] (Black J), where the cases are helpfully collected.

4    ASX seeks to resist an order under s 241 on three bases.

5    First, ASX submits that the asserted urgency arises from Rosherville’s delay over at least 18 months. While Rosherville appears to have been contemplating a claim for that period of time, I am told that it was only in July 2026 that the voluntary process of disclosure of documents by ASX came to a close. By September, it was apparent that ASX would not disclose any further documents voluntarily. In those circumstances, I am not persuaded that the present urgency can be attributed to delay by Rosherville. In any event, the matter is undoubtedly urgent, and even if I had been of the view that Rosherville had delayed unreasonably in bringing this application, then I would not have given that matter the preponderant weight that it is sought to be given. I note further that ASX relies on the criticism of the plaintiff’s delay in Pesec v Consolidated Builders Ltd (No 3) [2021] ACTSC 105 at [144]–[145] (McWilliam AsJ), but no application under s 241 was made in that case, and indeed the Court criticised the plaintiff for failing to do so.

6    Second, ASX submits that the financial position of Rosherville’s funder is parlous. Even taking those submissions at the flood, I do not regard that as a weighty factor. Rosherville has undertaken to pay ASX’s reasonable costs on the party-party basis in connection with the order sought under s 241, and I do not expect that those costs will be very substantial. ASX does not submit that Rosherville lacks the wherewithal to meet its undertaking. ASX submits that it appears that Rosherville does not understand the risks and consequences of Rosherville’s undertaking, but that submission is based on statements made in the affidavit of Mr Gibson made last week, and appears to have been overtaken by the undertaking to meet ASX’s costs in the draft orders propounded this morning.

7    Third, ASX submits that it is prejudiced because it has had to incur costs in relation to this application, and will have to incur costs in relation to the s 237 application if the interim order under s 241 is granted. However, Rosherville has undertaken to pay ASX’s costs of the s 241 application, and I do not regard the costs of the s 237 application as a weighty matter in relation to the present application. The risk that ASX may not be paid costs awarded in its favour in relation to the s 237 application is an ordinary aspect of litigation, and is accompanied by ordinary measures to protect parties, such as orders for the provision of security for costs, for which ASX may well wish to apply.

8    In my view, it is appropriate to grant the interim relief sought, together with the ancillary relief sought by the Rosherville.

Associate:

Dated:    13 October 2026