Although this is off-track from the issue dealing with the exercising of the options and the timing of same, it's worth taking a step back to look at the broader picture.
- The Statement of Claim (SOC) was electronically lodged post-4.30pm on Wed 4 Dec 2019, hence, it is deemed to have been filed on Thurs 5 Dec 2019.
- Pursuant to Rule 16.32 of the Federal Court Rules 2011, the respondent (ASX) must file a Defence within 28 days after the service of the SOC. I don't know if and when ISX served the SOC. Assuming it was served on Thurs 5 Dec, that gives the ASX until Fri 3 Jan 2020 in which to file their Defence (don't include the day of service - see: Section 36 Acts Interpretation Act 1901 (Cth).
- If it was served on Fri 6 Dec, then Section 36(2) of the Act gives a bit more breathing space and the Defence can be filed on the following Monday being 6 Jan 2020.
I've read a lot of comments coming from both sides of the fence. Some of it is persuasive but a not insignificant amount of it is purely conjecture, supposition, and speculation that the authors are seeking to elevate to the status of an affirmative inference or, worse still, a finding of fact. A long bow is being drawn by a few.
Until a Defence has been filed by the ASX, it's a little premature to jump to conclusions. Let's see what the ASX puts in issue. The orders being sought at paras D, F, and G on pages 23 and 24 of the SOC deal with the lifting of the suspension and the reinstatement for quotation. It would be superfluous for a Court to make those orders (or indeed for ISX to seek them) if ISX shares are reinstated in the interim, that is, between now and a final determination. I'd imagine that the ASX lawyers would have already prepared a Defence in draft or, if not, they would have already advised and are awaiting instructions. The declarations sought (paras A, B, C, and E) are somewhat of a precursor in that they will need to be made good before the orders sought can be made or any award of damages can be calculated and a judgment given in that sum.
If the orders sought are resisted, then buckle yourself in. I've attached the relevant provisions from the Corporations Act 2001 (Cth) that you can read. (I hope the attachments can be opened and offer some assistance). Bear in mind that a party that asserts must prove so the evidentiary onus/burden of proof falls squarely on ISX on the balance of probs.
There's also at para H on page 24 of the SOC a claim for damages. Logistically, and from an evidentiary perspective, that (if pursued by ISX) will prove onerous. By that I'm not saying it's impossible, only that it will take quite some time and effort to assemble the required evidence - a team of solicitors and a forensic accountant's dream (or nightmare). With the commencement of proceedings and the forthcoming filing of a Defence, we will no doubt see things heating up with much sought after information hopefully coming to light via subpoenas, discovery, interrogatories, notices to admit facts/documents, and a flurry of motions. I'm sure there's one thing that people will agree on and that is that probably every point will be taken by both parties and it will be fought tooth and nail.
Good luck everyone.
http://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s792a.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s793c.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s794c.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s794d.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s794e.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s798a.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s798h.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1101b.htmlhttp://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1324.html
