On 21 Feb 2023, Justice Goodman handed down his Orders on this matter. On the same day in a seperate release he also made avialable his reasons for his Judgement. His Judgement can be found at https://www.comcourts.gov.au/file/FEDERAL/P/NSD369/2022/order_list To read the Judgement - click on View Judgement Well worth a read - and some interesting facts have come out.
The reason the 'cleansing notices' were ineffective was not because the wording of the 'cleansing notice' was incorrect. The 'cleansing notices' were ineffective because they failed to meet either one or both of the following requirements:
(1) APG shares having been suspended from quotation for more than five trading days in the period of 12 months before the day on which the relevant shares were issued (therefore failing to meet the requirements of s 708A(5)(b)) My simple interpetation is: if the share has been suspended from quotation for more than 5 days - you cannot issue more shares for next12 months.
(2) the 'cleansing notice' having been given more than five business days after the day on which the shares were issued by APG (contrary to s 708A(6)(a)). My simple interpetation is: the market must be advised via a 'cleansing notice' within 5 days of share issuance.
In all 7 of the share placements that the judge reviewed, the judge found ALL 7 of the 'cleansing notices' were invalid because they were issued after the cutoff period of 5 business days. The 'cleansing notices' were'nt just a few days late - they were months late. In one case - no 'cleansing notice' was ever issued.
If you read the Judgement - you will see that Colin Iles deflects all the blame onto ex company secretary Gaston for this failure. But what were the highly paid APG Board of Directors doing to let this repeatedly get past their oversight. Mr Iles told the judge that company secretary Gaston did not tell the board what was going on with these placements - and the board members did not ask.
How did not APG board members not notice that the 'cleansing notices' were being issued at way overdue dates. And because these late overdue 'cleansing notices' had the potential to cause major problems and expense - why was this not corrected at the next monthly board meeeting ???????
But wait - there's more. In section 19, Judge Goodman makes note that APG had previously gone to the Supreme Court to rectify problems caused by untimely 'cleansing notices'. "On 10 December 2010, Judge Barrett made orders under s 1322 of the Act at the request of Austpac: Re Austpac Resources N.L. [2010] NSWSC 1438. Those orders were necessary because of a failure by Austpac to provide a cleansing notice with respect to a capital raising undertaken by it. "
On 6 Dec 2010, APG secretary Gaston made this announcement: " PLACEMENT TO PROFESSIONAL INVESTORS ON 29 OCTOBER 2010 The Company has been made aware that the section 708A Notice which accompanied the placement announcement on 29 October 2010 was late. The requirement of Section 708A (6) stipulates that notice must be given within 5 business days of the issue of shares. ...... The Company will make application to the Court for relief ......"
In 2010, APG secretary Gaston, and the APG board (Cuthbertson, Turbot, Harrison) if they were educated and professionally competent for their positions - should have known Section 708A (6) stipulates that notice must be given within 5 business days of the issue of shares. In 2010, it cost APG shareholders a lot of money via the NSW Supreme Court to make sure Gaston, Cuthbertson, Turbot, Harrison were now aware of their obligations on this mater.
Forward six years to 2016 - APG starts issuing tranches of shares and the 'cleansing statements' are months late, making the issue invalid Same useless bunch running the company Gaston, Cuthbertson, Turbot, Harrison but they have not learnt a thing.
Were these guys just incredibly stupid and lazy - or was someting else going on????
Wilcox PS Colin Iles joined the APG board in March 2017 - so he oversaw the issue of the last 4 tranches of invalid shares.
APG Price at posting:
0.2¢ Sentiment: None Disclosure: Not Held
