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Isx vs AFR, page-178

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Scott th Ratbag

41,768 Posts.

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18/09/20

13:14

Post #: 47449755
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Originally posted by ChillingOut: ↑

Good morning,

The Defence makes for a fairly tedious read. No criticisms of the ASX legal team - they're simply doing their job on the instructions they're given as are the ISX legal team.

A few comments:

There's the use from time to time of the phrases 'not within the contemplation' and 'not matters communicated by ISX to ASX'. That may be the case but I don't think you can bring a 2015 Deed into play when you're talking about potential deals to be done presumably in 2019/20. What business in 2015 has in its contemplation deals that are going to occur 5 years down the track, let alone feel the obligation to inform ASX in 2015. How can you contemplate and inform ASX of something in 2015 that may never exist. Crystal ball?
The details of the telephone discussions on 2 Oct (10 minutes) and 7 Oct (2 hours) will be telling as to initial suspension. The latter one was when they had time to think about it. The earlier one has always sparked interest.
Para 62A - I can't remember seeing a pleading where a party states that a Court would refrain from exercising its judicial power and should instead defer to the rules of said party. ISX are entitled to seek whatever relief they choose on the facts as pleaded in the 2FASOC. It's not one or the other - you can seek judicial review and still have an action for a breach of the Corps Act.
Para 64(b) - this one nearly slipped past. ASX are seeking to withdraw a prior admission. There's a body of law and rules around that little stroke of the pleading pen. Have a look at para 64 of the 2FASOC that is being traversed. Now have a look at para 64(c) - that's a fairly significant admission that ASX are seeking to withdraw. Maybe ISX consented to that withdrawal, I don't know.
Para 73(m) and some other places - ASX throwing SMH and AFR under the bus. 'We released it but you guys really put it out there'.
Para 83 - views/opinions/considerations. It doesn't really matter what you call them. They were published as the ASX official SOR. A document from the market operator after their lengthy inquiries. It's fair to say that the average punter would see it for what it is. The document speaks for itself no matter how you characterize the statements after they're published.
Again, peppered throughout there's this phrase '.....would or would likely also have been or become aware of one or more...'. Says who? Who do you measure that objective test against? The reasonable share trader? The reasonable investor? The reasonable person? The reasonable AFR reader? If people became aware of the contents of the SOR, it's because it was released to the market and published. Last time I checked, Chinese whispers and the grapevine wasn't a defence.
Para 94A - correct, the Court did refuse ISX an injunction to restrain the release of the SOR. That said, the Court certainly did not order ASX to release it. That was a decision they made with full knowledge of its contents and the likely harm it would cause.
Para 94B(c) - I don't recall fraud ever being pleaded but I guess ASX are just covering their bases as s1041I(1B)(c)(ii) refers to it. Interesting little subsection that one. ASX have pleaded they didn't intend to cause loss to ISX. ISX may see it differently, who knows.
Contributory negligence - that's a stock standard fallback in the alternative. Nothing novel there. Quite rightly, a failure to mitigate damages hasn't been pleaded. It's a bit hard to mitigate your damages when your opponent has you sidelined and you've had a SOR published in certain terms against you.

There's probably other things but broadly speaking (and to be expected), the only things that are admitted are things that there can be absolutely no issue about. As one would anticipate, it's plenty of denials and ASX putting ISX to proof on nearly all matters as they are entitled to do.

Cheers all, enjoy the weekend.

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"plenty of denials and ASX putting ISX to proof on nearly all matters as they are entitled to do..."

Such a shame that ASX didn't apply the same right to denial for ISX and accept the denial of allegations when they produced this. Does hypocrisy provide a basis in legal argument? At least ISX provided reasoning in their answers to ASX queries.

Thanks do going right through the whole dreary business and producing a summary @ChillingOut .
ISX Price at posting: $1.07 Sentiment: Buy Disclosure: Held
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