Queensland North Australia Pty Ltd v Takeovers Panel [2014] FCA 591

FEDERAL COURT OF AUSTRALIA

Queensland North Australia Pty Ltd v Takeovers Panel [2014] FCA 591 Citation: Queensland North Australia Pty Ltd v Takeovers Panel [2014] FCA 591

Parties: QUEENSLAND NORTH AUSTRALIA PTY LTD (ACN 146 828 122), CLOSERIDGE PTY LTD (ACN 010 560 157) and CLIVE FREDERICK PALMER v TAKEOVERS PANEL, THE PRESIDENT'S CLUB LIMITED (ACN 010 593 263), PRESIDENT, TAKEOVERS PANEL and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

File number: QUD 526 of 2012

Judge: COLLIER J

Date of judgment: 5 June 2014

Catchwords: CORPORATIONS – first applicant acquired control of company holding 41.4% of voting shares in second respondent – application to the Takeovers Panel seeking declaration of unacceptable circumstances – s 657A and s 657C(2) Corporations Act 2001 (Cth) – alleged breaches of ss 606, 631(1) and 633(1) Corporations Act – Takeovers Panel declared circumstances unacceptable – regard to effect of circumstances on control of second respondent company and acquisition of a substantial interest in the second respondent company – orders by Takeovers Panel restricting exercise of voting rights by applicants, acquisition and disposal of shares in second respondent – whether s 657A circumstances can be ongoing – deed poll restricted holding company's exercise of voting rights attached to shares in the second respondent – whether acquisition of holding company constituted an increase in voting power of first applicant – s 606 and s 610 Corporations Act – constitution of second respondent company contemplated each holder of share parcel also holding associated one-quarter interest in a villa property – whether evidence to support finding that shares and interest in villa properties stapled – whether orders of Takeovers Panel ensured takeover bid proceeds in way it would have if circumstances had not occurred – s 657D(2) Corporations Act ADMINISTRATIVE LAW – judicial review of decision of Takeovers Panel in relation to first applicant's acquisition of interest in second respondent – s 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) – declaration of unacceptable circumstances under s 657A Corporations Act – no notice of intention to extend time – extension of time granted in alternative – whether breach of natural justice by Takeovers Panel in granting extension of time for application – primary finding that circumstances ongoing and application made in-time – whether Takeovers Panel erred in law in construing s 657B(a) Corporations Act as referring to continuing circumstances – whether circumstances can be ongoing – whether Takeovers Panel made decision to extend time in absence of evidence to justify doing so – whether Takeovers Panel erred in finding first applicant's acquisition of holding company breached s 606 Corporations Act – whether evidence to support findings of Takeovers Panel – whether declaration an improper exercise of power – whether Takeovers Panel took into account irrelevant considerations – whether Takeovers Panel stated conclusions without setting out evidence on which findings based – whether orders made by Takeovers Panel constituted Wednesbury unreasonableness – whether Takeovers Panel denied natural justice in making orders affecting third applicant director of first applicant – President of Takeovers Panel also Chairman of Partners at law firm acting against company controlled by third applicant – whether reasonable apprehension of bias COSTS – corporate regulator ASIC sought to be joined to proceedings as a proper contradictor – whether ASIC entitled to costs