Australian Securities and Investments Commission v National Exchange Pty Ltd [2003] FCA 955

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v National Exchange Pty Ltd [2003] FCA 955 CORPORATIONS – offer to purchase shares – purchase price payable by instalments – contents of offer literally true – misleading impression that offer was for cash

Corporations Act 2001 (Cth) s 1041H

Aronberg v Federal Trade Commission 132 F2d 165 (7th Cir, 1943) applied Bockenstette v Federal Trade Commission 134 F2d 369 (10th Cir, 1943) applied Campomar Sociedad, Limitada v Nike International Ltd (1999) 202 CLR 45 distinguished 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 not followed Federal Trade Commission v Sterling Drug Inc 317 F2d 669 (2nd Cir, 1963) applied Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 cited P Lorillard Co v Federal Trade Commission 186 F2d 52, 58 (4th Cir 1950) cited Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 cited Rothschild v Federal Trade Commission 200 F2d 39 (7th Cir, 1952) applied Slazenger & Sons v Feltham & Co (1889) 6 RPC 531 applied Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 discussed AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NATIONAL EXCHANGE PTY LTD and DAVID TWEED V 3188 of 2003 FINKELSTEIN J 10 SEPTEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 3188 of 2003

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

AND: NATIONAL EXCHANGE PTY LTD

and DAVID TWEED

Defendants JUDGE: FINKELSTEIN J

DATE OF ORDER: 10 SEPTEMBER 2003

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. The first defendant contravened s 1041H of the Corporations Act 2001 (Cth) by representing in written offers to purchase shares in Onesteel Ltd ("the Offers") that the offer price was payable in full upon acceptance of the Offers whereas the price was payable in 15 equal annual instalments. 2. The second defendant: (a) aided, abetted, counselled and procured the said contravention by the first defendant; and (b) has been knowingly concerned in, and party to, the said contravention by the first defendant. by causing the Offers to be sent to shareholders in Onesteel Ltd.