In Carson v Dynasty Metals Australia Ltd [2011] FCA 621 the Federal Court dismissed an application for an injunction against a share placement on the grounds that the resolution had relied on disputed proxies.

The principal argument of the applicant was that the proxies had not been sent directly by the shareholder concerned to the company but through an intermediary.

Judge Jagot distinguished Bisan v Cellante and Portman Iron (discussed here) as follows:

“…no authority has been brought to my attention which supports the proposition that the sending of proxies to Mr Tay to be forwarded to Dynasty Metals would constitute a breach of ss 250A or 250B of the Corporations Act. There is no requirement in those sections that the relevant proxy documents be sent directly by the shareholder in question to the company. Section 250B(1) simply requires that the documents be received by the company. The decisions on which Mr Carson relies – Bisan v Cellante and Portman Iron – relate, at least on their face, to entirely different circumstances: namely, circumstances in which the company’s notice of meeting specifically directed shareholders to send their proxies to a third party rather than to the company itself. Read in this light, the decisions stand for the principle that a notice of meeting cannot so direct because the result would be contrary to the express requirement in s 250B(1) that proxy documents be received by the company. It is one thing to accept this statement of principle as accurate; it is another to accept the proposition that proxies cannot be handled by any third party on their way from a shareholder to a company.”