RE PENINSULA ENERGY LIMITED; EX PARTE PENINSULA ENERGY LIMITED [2026] WASC 213

[2026] WASC 213 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE PENINSULA ENERGY LIMITED; EX PARTE PENINSULA ENERGY LIMITED [2026] WASC 213 CORAM : HILL J HEARD : 22 APRIL 2026 DELIVERED : 22 APRIL 2026 PUBLISHED : 3 JUNE 2026 FILE NO/S : COR 43 of 2026 MATTER : IN THE MATTER OF PENINSULA ENERGY LIMITED EX PARTE PENINSULA ENERGY LIMITED Plaintiff Catchwords: Corporations - Application for declaratory relief trading in securities issued without a valid cleansing prospectus - Where no blatant disregard of obligations - Where no substantial injustice if orders made - Whether orders should be made relieving officers of civil liability - Turns on own facts Legislation: Corporations Act 2001 (Cth) s 707(3), s 708(11), s 1322 -- 1 of 10 -- [2026] WASC 213 Page 2 Result: Application granted Category: B Representation: Counsel: Plaintiff : J Birch Solicitors: Plaintiff : Hamilton Locke Cases referred to in decision: Re Caeneus Minerals Ltd [2018] FCA 560 Re Classic Minerals Ltd [2018] FCA 2039 Re Golden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17 Re Murray River Organics [2019] FCA 931; (2019) 138 ACSR 365 -- 2 of 10 -- [2026] WASC 213 HILL J Page 3 HILL J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) 1 By originating process filed 17 April 2026, the plaintiff, Peninsula Energy Limited (Peninsula or Company), seeks orders pursuant to s 1322(4)(a) and (c) of the Corporations Act 2001 (Cth) (Act) in relation to the issue of 19,875,125 fully paid ordinary shares on 12 February 2026, and their subsequent sale, without a cleansing prospectus having been issued as required by s 708(11) of the Act. 2 At the time the originating process was filed, Peninsula filed a certificate of urgency certifying the application required an urgent hearing. The basis for the urgency is that its shares are currently suspended from trading, pending resolution of these proceedings. For this reason, the application has been listed before me this morning. 3 In support of the application, Peninsula relied on five affidavits, three filed on 20 April 2026, being: (a) an affidavit of Clara Elizabeth Hagan, a legal practitioner employed by the solicitors of Peninsula; (b) an affidavit of Jonathan David Whyte, the company secretary of Peninsula; (c) an affidavit of David Alan Thomas Coyne, the non-executive chair of Peninsula; as well as (d) two further affidavits of Ms Hagan, filed on 21 and 22 April 2026. 4 I have also had the benefit of a written outline of submissions, as well as oral submissions from counsel who appeared before me this morning. 5 On the evidence before me, I am satisfied that notice of the application has been given to the Australian Securities and Investments Commission (ASIC) and the Australian Securities Exchange (ASX).1 Both regulators have indicated that they neither oppose nor consent to 1 Affidavit of Clara Elisabeth Hagan filed 20 April 2026, 'CEH-23', 'CEH-24'. -- 3 of 10 -- [2026] WASC 213 HILL J Page 4 the orders sought by the Company and did not wish to be heard on the application. Factual background 6 The factual background to the application can be summarised as follows. 7 Peninsula is a uranium mining company with a portfolio of projects in the United States of America. It was incorporated in 1993 and has been listed on the ASX since 1994. As at 16 April 2026, Peninsula had approximately 447.2 million shares on issue, and a market capitalisation of approximately $264 million.2 8 Between 23 April 2025 and 26 August 2025, Peninsula's shares were suspended from trading.3 9 During this period, two important announcements were made by the Company. First, on 10 July 2025, Peninsula announced it had secured a debt facility of up to USD $15 million from Davidson Kempner Capital Management LP (DK Debt Facility).4 On 22 August 2025, Peninsula issued a prospectus for a pro rata entitlement offer to eligible shareholders, a placement, and various secondary issues that were set out in the prospectus.5 This did not include the convertible notes that formed part of the DK Debt Facility. 10 Given the length of time that Peninsula's shares were suspended, as at August 2025, Mr Whyte was aware the Company would be unable to rely on the cleansing notice regime in s 708A(5)(e) of the Act in relation to any securities issued within 12 months following Peninsula's reinstatement to trading.6 11 On 9 February 2026, Mr Whyte received a notice from Adare Finance Designated Activity Company (Adare), the nominee of DK under the DK Debt Facility, exercising its right to convert USD $4.25 million of the DK Debt Facility to ordinary shares in Peninsula (Conversion Notice). The email from the chief financial officer of Peninsula to Mr Whyte, which enclosed the Conversion 2 Affidavit of Clara Elisabeth Hagan filed 20 April 2026 [5], [8], 'CEH-1', 'CEH-2'. 3 Affidavit of Clara Elisabeth Hagan filed 20 April 2026 [10] - [11], 'CEH-3', 'CEH-4'; Affidavit of Jonathan David Whyte filed 20 April 2026 [19]. 4 Affidavit of Clara Elisabeth Hagan filed 20 April 2026 [12], 'CEH-5'. 5 Affidavit of Clara Elisabeth Hagan filed 20 April 2026 [14] - [15], 'CEH-6'. 6 Affidavit of Jonathan David Whyte filed 20 April 2026 [20]. -- 4 of 10 -- [2026] WASC 213 HILL J Page 5 Notice, expressly noted that the issue of shares would require a cleansing notice.7 12 On 12 February 2026, Peninsula issued 19,875,125 ordinary shares, lodged an ASX announcement, an Appendix 2A, and a cleansing notice which stated it was issued under s 708A of the Act (Cleansing Notice).8 At the time the Cleansing Notice was issued, Mr Whyte failed to recall that Peninsula was unable to issue a cleansing notice, as its shares had not been reinstated to trading for more than 12 months.9 13 On 1 April 2026, Mr Whyte received another conversion notice issued by Adare, whereby Adare exercised its rights under the DK Debt Facility to convert two amounts, USD $750,000 and USD $3,350,000 to ordinary shares in Peninsula (April Conversion Notice). The April Conversion Notice required Peninsula to issue 19,760,633 ordinary shares (April Shares).10 14 At this time, Mr Whyte recalled that Peninsula might not be entitled to issue a cleansing notice in respect of the April Shares, or in fact the February Shares, because trading in its shares had been suspended for more than 12 months. He reported the issue to Peninsula's board of directors, engaged external solicitors, and a cleansing prospectus was prepared in relation to the April Shares (Cleansing Prospectus).11 15 On 7 April 2026, Peninsula issued the April Shares, lodged an ASX announcement, an Appendix 2A, and the Cleansing Prospectus.12 16 On 13 April 2026, Mr Whyte was informed that the February Shares had been on-sold by DK's nominee prior to 6 April 2026.13 As a result, Peninsula sought further advice from its solicitors, and on 17 April 2026, instructed its solicitors to make this application, and to request a voluntary trading halt, pending its determination.14 7 Affidavit of Jonathan David Whyte filed 20 April 2026 [31], [33], 'JW-1'. 8 Affidavit of Jonathan David Whyte filed 20 April 2026 [38] - [39], 'JW-3'. 9 Affidavit of Jonathan David Whyte filed 20 April 2026 [41]. 10 Affidavit of Jonathan David Whyte filed 20 April 2026 [43], [44], 'JW-5'. 11 Affidavit of Jonathon David Whyte filed 20 April 2026 [46], [50] - [52]; Affidavit of David Allan Thomas Coyne filed 20 April 2026 [63]. 12 Affidavit of Jonathan David Whyte filed 20 April 2026 [55] - [56]; Affidavit of Clara Elisabeth Hagan filed 20 April 2026 [27], 'CEH-17'. 13 Affidavit of Jonathan David Whyte filed 20 April 2026 [42]. 14 Affidavit of Jonathan David Whyte filed 20 April 2026 [60] - [61]; Affidavit of Clara Elisabeth Hagan filed 20 April 2026 [30], 'CEH-20'. -- 5 of 10 -- [2026] WASC 213 HILL J Page 6 Should the proposed declarations be made? 17 Part 6D.2 of the Act imposes disclosure obligations on corporations in relation to the issue and sale of quoted securities. In certain circumstances, the disclosure obligations can be satisfied by lodging a cleansing notice or prospectus. The cleansing notice exception can only be relied upon if the preconditions in s 708A(5) of the Act are met. These include that trading in the class of securities was not suspended for more than a total of five days over the previous 12 months. The cleansing prospectus exception applies where a prospectus is lodged on or after the date that securities are issued, but before the day on which a sale offer is made.15 Where this occurs, the disclosure requirements for offers and sales of shares of that class of securities are met on that date. 18 If disclosure has not been made by the issuer, and the shares are on-sold within the 12-month period, the party to whom the shares are issued may be obliged to make a disclosure.16 19 In its originating process, Peninsula seeks a declaration that under s 1322(4)(a) of the Act, any offer for sale or sale of the February Shares is not invalid by reason of the failure to give a valid notice under the Act, and the consequent failure by the seller to comply with s 707(3) and s 708A(5)(e) of the Act. As discussed with counsel during the hearing this morning, I consider that, in this case, it is more accurate to describe the contravention as a failure to issue a prospectus under s 708A(11) of the Act on or before 12 February 2026. 20 In this case, I note that the prescriptive requirements of s 1322(4)(a) of the Act are satisfied, in that: (a) the proposed orders are framed in a declaratory form; and (b) the act, matter or thing has been identified, as well as the contravention. Are the pre-conditions in s 1322(6) satisfied? 21 Counsel for Peninsula submitted, which I accept, that each of the preconditions in s 1322(6) were satisfied. 15 Corporations Act 2001 (Cth) s 708A(11). 16 Corporations Act 2001 (Cth) s 707(3). See also Re Golden Gate Petroleum Ltd [2010] FCA 40; (2010) 77 ACSR 17. -- 6 of 10 -- [2026] WASC 213 HILL J Page 7 22 The failure to issue a cleansing notice or prospectus has been routinely accepted by courts as being a procedural matter within the terms of s 1322(6)(a)(i) of the Act.17 23 In relation to the precondition in s 1322(6)(a)(ii) of the Act, on the evidence before me, I accept and find that the failure to issue a cleansing prospectus in February 2026 was both honest and inadvertent. 24 I also accept that in the circumstances of this case, as I already outlined, it would be just and equitable to make the orders sought under s 1322(4)(a) of the Act. Will making the orders cause any substantial injustice? 25 In considering whether there would be any injustice if the orders sought are made, I have considered the classes of persons who may be impacted by the making of these orders, being the Company, its shareholders, and any seller or buyer of the February Shares. 26 For the following reasons, I do not consider that any substantial injustice would be caused by the making of the declaration sought, and in fact consider the reverse to be the case. 27 First, there would be prejudice to the recipients of the February Share issue and the subsequent purchases of these shares if the orders sought are not made, as any sales of these shares may be void or voidable. Alternatively, the consequence would be that the current owners of these shares may be prevented from dealing with their assets for a further 10-month period, through no fault of their own. In my view, it is appropriate to make the orders sought to remove any question as to the title of these shares. 28 Second, there would be prejudice to Peninsula in the possibility that it may be required to stay involved to ensure there are no title issues with its shares on issue. 29 Third, in relation to Peninsula's shareholders more broadly, Peninsula's failure to comply with the relevant provisions of the Act has caused it to have its shares suspended from trading. If orders are not made by the court, all shareholders will not have the benefit of an active market for their shares. 17 See Re Caeneus Minerals Ltd [2018] FCA 560 [39] - [40]; Re Classic Minerals Ltd [2018] FCA 2039 [35] - [36]. -- 7 of 10 -- [2026] WASC 213 HILL J Page 8 Should the court exercise its discretion to grant the relief sought? 30 In exercising the court's discretion, a relevant factor is the promptness with which Peninsula has sought to remedy the irregularity once it has been identified. 31 The evidence before the court is that Peninsula first became aware of the issue on 1 April 2026, and that it was not aware until 13 April 2026 that the February Shares had been on-sold. It then sought further legal advice, gave instructions to commence these proceedings on 16 April 2026, and requested the matter be listed for hearing today. I am satisfied that since becoming aware of the issues raised on this application, Peninsula has worked extremely diligently to remedy the irregularity, including by seeking an urgent hearing of this matter. 32 Mr Whyte's evidence is that the company has reviewed its history of compliance with its disclosure obligations and intends to implement the procedure to ensure this issue does not occur again.18 33 I accept and find that Peninsula's conduct was inadvertent, and that there is no evidence of any substantial misconduct, serious wrongdoing or flagrant disregard of the Act that would warrant the exercise of the discretion to refuse the relief that is sought. I do not consider that public policy will be undermined by granting the relief sought, and in fact consider the reverse to be the case. 34 There is nothing on the evidence before me to suggest that any minority interest might be oppressed, or that any other interest could be affected by the orders sought by Peninsula. 35 I am satisfied that shareholders, ASIC and the ASX have been notified of the issue that has arisen and been given notice of the application. No one has sought to be heard or to intervene in the hearing today. 36 In these circumstances, I consider it is appropriate to make the declaration sought in order 1, subject to the amendments discussed at the hearing. 18Affidavit of Jonathan David Whyte filed 20 April 2026 [63] - [66]. -- 8 of 10 -- [2026] WASC 213 HILL J Page 9 Should orders be made to relieve the seller of the February Shares from civil liability? 37 Section 1322(4)(c) of the Act permits the court to make an order relieving a person from civil liability for a broad range of contraventions or failures, subject to the conditions in s 1322(6) of the Act, that the person concerned acted honestly, and that no substantial injustice has been or is likely to be caused to any person.19 38 I accept that there is no evidence that Adare, as the seller of the February Shares, acted dishonestly, particularly given the warranty in the Appendix 2A form that no disclosure on its part was required prior to sale, as well as the issue of the Cleansing Notice on that date. I accept that the relief sought by Peninsula is appropriately confined to the specific omission that caused the contravention, as well as to the parties who may be affected by this. 39 For these reasons, I consider it appropriate that order 2 of the minute of proposed orders be made subject to the amendments discussed during the hearing. Conclusion and orders 40 In relation to the costs of the application, Peninsula submitted that the appropriate order was that there be no order as to costs. In my view, on the evidence before me, this is the appropriate costs order. 41 I also accept that the ancillary orders sought by Peninsula in terms of service of the court's orders, publication of an announcement containing these orders on the ASX, and the allowance for any agreed party to apply to this court to vacate or vary these orders, will protect any shareholders or interested persons of Peninsula from any possible prejudice that may arise from this application. 42 For these reasons, I consider it appropriate to make orders broadly in terms of the minute of proposed orders filed 21 April 2026. 19 Re Murray River Organics [2019] FCA 931; (2019) 138 ACSR 365 [28]. -- 9 of 10 -- [2026] WASC 213 HILL J Page 10 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. KS Associate to the Hon Justice Hill 3 JUNE 2026 -- 10 of 10 --