The case relates to a number of on-market purchases of shares in Macquarie Group Limited by the first plaintiff, Macquarie Securities Limited (MSL), as broker.
The shares were then held by the second plaintiff Belike Nominees Limited as custodian, pending further transfers of the shares.
Both MSL and Belike were at the time of the transaction, and remain, wholly-owned subsidiaries of Macquarie Group.
Under s.259C(1) of the Corporations Act, the issue or transfer of shares to a company that an entity controls is void unless one of four conditions is met.
On 5 April 2011, ASIC granted Macquarie Group and MSL an exemption from s.259C(2) of the Act in relation to the acquisition of Macquarie Group shares for the purpose of distributing the shares to participants in the company's dividend reinvestment plan.
In a decision handed down on Friday, Justice Yates accepted that Macquarie Group legal and governance division director Nigel Donnelly inadvertently failed to provide ASIC with the deed required for the exemption.
“I accept Mr Donnelly’s explanation. I accept that the failure to provide the deed was inadvertent and the product of an innocent mistake,” said Justice Yates in his decision.
“In the circumstances I have outlined, I am satisfied that the plaintiffs have acted honestly. I am also satisfied that, in any event, it is just and equitable that the relief now sought be granted. In coming to that conclusion, I am satisfied that no substantial injustice has been or is likely to be caused to any person,” he wrote.
