Diamond Rose NL v Striker Resources NL [1998] FCA 1169

FEDERAL COURT OF AUSTRALIA

CORPORATIONS LAW– variation of takeover offers – contravention of Corporations Law – failure to send copies of notice of variation to shareholders in time – meaning of "sending" – whether contravention ought to be excused "in all the circumstances" – relevant factors to consider – meaning of "inadvertence or mistake" – whether there was a mistake of law – whether there was unfair prejudice.

Companies Act 1960 (Vic) s 180L

Securities Industry Act 1970 (Vic) s 5B(2)

Corporations Law Ch 6, Pt 6.3, Div 5; ss 109Y, 607, 610, 654(1), 656(1), 657(1) and (3), 659(1), 660, 663(2), 698, 743, 743(3), 744(2), 1322; pars 657(1)(a) and (b)

Corporations Regulations reg 6.1.01

Elkington v Vockbay Pty Ltd (1993) 10 ACSR 785 – applied

Hamilton v Property Investments Ltd [1983] WAR 317 – referred to

Sanwa Australia Finance Ltd v Ground–Breakers Pty Ltd (in liq) [1991] 2 Qd R 456 – referred to

Re John Francis Walker and Kahlua Pty Ltd (1996) 22 ACSR 104 – referred to

Re Haughton & Co (1977) 2 ACLR 320 – considered

Waldon v M G Securities [1975] VR 508 – referred to

DIAMOND ROSE NL (ACN 075 860 472) v STRIKER RESOURCES NL (ACN 009 153 119)

WG 3020 of 1998

LEE J

PERTH

6 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WG 3020 of 1998

BETWEEN: DIAMOND ROSE NL (ACN 075 860 472)

Applicant

AND: STRIKER RESOURCES NL (ACN 009 153 119)

Respondent

JUDGE: LEE J

DATE OF ORDER: 6 AUGUST 1998

WHERE MADE: PERTH

THE COURT DECLARES THAT:

1. The applicant's act of sending its Notice of Variation of Offer dated 21 July 1998 to the shareholders of Striker Resources NL commencing on Friday, 24 July 1998 and ending on Monday, 27 July 1998 is not invalid and at all times has had effect as if it were completed prior to 5.00 pm (Perth time) on Wednesday, 22 July 1998.