Wenzel v Australian Stock Exchange Ltd [2002] FCA 95

FEDERAL COURT OF AUSTRALIA

Wenzel v Australian Stock Exchange Ltd [2002] FCA 95

CONTRACTS ‑ Offer and acceptance ‑ Whether application for admission to Australian Stock Exchange (ASX) gave rise to an agreement by ASX to process application in accordance with its Articles ‑ Consideration ‑ Whether implied term that application would be processed with reasonable promptness, in a bona fide manner, consistently with duty of fair dealing, without taking into account irrelevant considerations, and without giving effect to ulterior purposes. COMPANY LAW ‑ Applicant applies to join ASX ‑ Consideration of membership applications deferred pending decision relating to demutualisation of ASX ‑ Demutualisation ‑ Pre‑demutualisation members entitled to shares in demutualised ASX ‑ Deferred applicants admitted to membership with no entitlement to shares ‑ Whether applicant entitled to full membership and distribution of shares ‑ Whether applicant oppressed. TRADE PRACTICES ‑ Misleading and deceptive conduct ‑ Silence as conduct ‑ Unconscionable conduct. EQUITY ‑ Equity looks on that as done which ought to be done ‑ Contract ‑ Application of maxim dependent on specific enforceability.

Corporations Law Part 71A Corporations Act 2001 s 232 Trade Practices Act 1974 ss 51AA, 52

Vroom BV v Fosters Brewing Group Ltd [1994] 2 VR 32 cited Woodford v Smith [1970] 1 WLR 806 considered Baker v Liberal Party of Australia (SA Division) (1997) 68 SASR 366 considered Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 applied Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 considered Freeman v Cooke (1848) 2 Ex 654 cited Von Hatzfeldt‑Wildenburg v Alexander [1912] 1 Ch 284 cited Campbell v Rofe (1932) 48 CLR 258 considered Strong v J Brough & Son (Strathfield) Pty Ltd (1991) 5 ACSR 296 cited Re Interchase Corporation (1992) 111 ALR 561 cited Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 cited Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41‑703 applied Metropolitan Life Insurance Co v RJR Nabisco Inc (1989) 716 F Supp 1504 cited Burger King Corp v Hungry Jack's Pty Ltd (unreported, NSWCA 21 June 2001) cited Re RAC Motoring Services Ltd [2001] 1 BCLC 307 considered Re NRMA Ltd (2000) 33 ACSR 595 considered Spargos Mining NL (1990) 8 ACLC 1,218 distinguished Wayde v New South Wales Rugby League (1985) 180 CLR 459 applied Australian Competition and Consumer Commission v Simply No‑Knead (Franchising) Pty Ltd (2000) 104 FCR 253 cited Commercial Bank of Australia Ltd v Amadio (1982) 151 CLR 447 cited Stern v McArthur (1988) 165 CLR 489 cited Re Anstis (1886) 31 Ch D 596 cited De Beers Consolidated Mines Ltd v British South Africa Co [1912] AC 52 cited Frederick v Frederick (1721) 1 Str 455; 93 ER 632 cited PETER BRUCE WENZEL v AUSTRALIAN STOCK EXCHANGE LTD VG 545 OF 1998 GRAEME VINCENT ROUGH v AUSTRALIAN STOCK EXCHANGE LTD VG 546 OF 1998 BRYAN FRANCIS MADDEN v AUSTRALIAN STOCK EXCHANGE LTD VG 551 OF 1998 SUNDBERG J 15 FEBRUARY 2002 MELBOURNE