Exercise of discretion310 In this case, I accept the submission...

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.