Exercise of discretion 310 In this case, I accept the submission of Metalicity that it was not unreasonable for it not to seek relief in relation to the AGM in the First Proceedings. At the time of the hearing of the First Proceedings, the s 249F Meeting that had been sought to be convened by Metalicity as well as the EGM were scheduled to be held on 4 July 2022. Had Metalicity sought to include relief in relation to the AGM, I accept it was likely that an application for an adjournment of the hearing would have been made. However, the hearing needed to proceed at that time to address the issues raised in respect of these proposed meetings. In these circumstances, I do not accept that Metalicity was required to bring any claim for relief in respect of the AGM in the First Proceedings and that it should be prevented from raising these issues in these proceedings. 311 The more relevant issue, in my view, is whether the court should exercise its discretion to make declaratory orders in relation to the resolutions of the AGM when similar resolutions were considered by shareholders at the EGM. 312 For the reasons set out above, I do not consider there was any understanding or arrangement between the first to twenty-sixth defendants in respect of the resolutions to be considered at the EGM. This was the only basis on which the resolutions passed at this meeting were challenged. For this reason, I consider that there would be no utility in making any orders in respect of the AGM as these would not impact or overturn the resolutions that were validly passed at the EGM. Issues of shares announced by Nex on 30 September 2022 313 Given these findings, it is unnecessary for me to consider the issue of shares announced on 30 September 2022 nor do I consider it appropriate to do so. These matters are raised in separate proceedings for oppression and can be considered in those proceedings. [2022] WASC 420 HILL J Page 100 Conclusion and Orders 314 For the reasons set out above, I consider the originating process should be dismissed. I will hear from the parties as to the appropriate order as to costs.
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0.4¢ Sentiment: Hold Disclosure: Held