Edensor Nominees Pty Ltd v Australian Securities & Investments Commission [2002] FCAFC 72; [2002] FCA 307

Edensor Nominees Pty Ltd v Australian Securities & Investments Commission [2002] FCAFC 72 Edensor Nominees Pty Ltd v Australian Securities & Investments Commission [2002] FCA 307

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Edensor Nominees Pty Ltd v Australian Securities & Investments Commission [2002] FCA 307

CORPORATIONS LAW – takeovers – acquisition of shares – prohibition of acquisition of more than 20% of the shares in a company without making a takeover offer – two shareholders holding more than 40% of a listed company make a "takeover offer" using a corporate vehicle for the bid ‑ whether agreement between shareholders not to accept the takeover offer and to retain shares for purposes of the bid to enable compulsory acquisition contravenes s 615 of the Corporations Law – whether shareholders agreement which resulted in increases in the "relevant interests" deemed to be held by reason of s 33(a) relevant interests in shares acquired in contravention of s 615 – whether acquisition of a relevant interest extends to a deemed relevant interest or limited to an actual relevant interest – whether statements contained in the Part A Statement in relation to acquisitions misleading – finding of contravention by primary judge ‑ order that contravener pay money to ASIC for distribution to shareholders disadvantaged by contravention ‑ appeal ‑ principles governing exercise of Court's discretion to grant a remedy that is just or which protects the interests of shareholders – whether relief will cause "unfair prejudice" WORDS AND PHRASES – "acquire shares in a company", "acquires a relevant interest in shares" Corporations Law ss 30, 33, 51, 615, 737, 739, 744, 995(2)(b)(iii) Trade Practices Act 1974 (Cth) s 52 Australian Securities and Investments Commission Act 1989 (Cth), s 12DA TVW Enterprises Ltd v Queensland Press Ltd [1983] 2 VR 529 cited Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 cited Jones v Dunkel (1959) 101 CLR 298 cited Briginshaw v Briginshaw (1938) 60 CLR 336 cited Re Kornblums Furnishings Ltd [1982] VR 123 cited TVW Enterprises Ltd v Queensland Press Ltd [1983] 2 VR 529 cited North Sydney Brick & Tile Co Ltd v Darvall (1986) 5 NSWLR 681 cited Corumo Holdings Pty Ltd v C Itoh Ltd (1992) 10 ACLC 428 cited Green v Crusader Oil NL (1985) 10 ACLR 120 distinguished Aberfoyle Ltd v Western Metals Ltd (1998) 84 FCR 113 cited John McIntosh & Sons Ltd v Bakers Bargain Stores (Seafood) Ltd [1965] 1 WLR 1182 cited Re Stockbridge Ltd (1993) 9 ACSR 637 considered Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 cited The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 cited David Grant & Co. Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 cited Metals Exploration Ltd v Samic Ltd (1994) 181 CLR 109 cited