Australian Pipeline Limited v Alinta Limited [2007] FCAFC 55

FEDERAL COURT OF AUSTRALIA

Australian Pipeline Limited v Alinta Limited [2007] FCAFC 55

APPEAL – Corporations Law – appeal from single judge of the Federal Court of Australia – application for declaration of contravention of s 606 of Corporations Act 2001 (Cth) and consequential orders for relief including divestment of shareholding – whether first respondent as a matter of fact acquired a relevant interest in fifth respondent's securities in the appellant pursuant to a takeover bid and therefore made an acquisition exempted under s 611, Item 1 Corporations Act 2001 – whether first respondent subsequently acquired a relevant interest pursuant to s 608(1)(c) Corporations Act 2001 by entry into a Heads of Agreement by acquiring the power to dispose of or control the disposal of the relevant interest – whether by entry into the Heads of Agreement the first respondent acquired a relevant interest pursuant to s 608(8) of the Corporations Act 2001 by acquiring an enforceable right in relation to the securities – whether by entry into a Merger Implementation Agreement and other transaction implementation documents the fourth respondent acquired a relevant interest pursuant to s 608(1)(c) or s 608(8) of the Corporations Act 2001 – whether a declaration by the Australian Securities and Investments Commission modifying the effect of s 609(7) of the Corporations Act 2001 pursuant to s 655A of the Corporations Act 2001 operated to protect the first and second respondents from acquiring a relevant interest by subsequent on market acquisitions in the appellant.

Held (per Gyles and Lander JJ, Finkelstein J dissenting): On the evidence before the Court it could not be satisfied that before entering into the Heads of Agreement the first respondent did not have more than 20% interest in the fifth respondent by acceptances pursuant to the takeover bid and therefore a relevant interest in the fifth respondent's downstream interest in the appellant.