Australian Consolidated Press Ltd v Australian Newsprint Mills Holdings Ltd [1960] HCA 53

High Court of Australia Dixon C.J. Fullagar, Menzies and Windeyer JJ. Australian Consolidated Press Ltd v Australian Newsprint Mills Holdings Ltd [1960] HCA 53

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 10 Dixon C.J.

The determination of this appeal depends upon s. 130B of the Companies Act 1920 as amended to 1957 (Tas.). Section 130B was inserted in the Companies Act by s. 6 of Act No. 24 of 1957. In the consolidating Companies Act 1959 Tas. the provision is represented by s. 127 but that section is rather a redraft based upon s. 209 of the Companies Act, 1948 of the United Kingdom. Section 130B, with which the appeal is concerned, is traceable more to the terms of s. 155 of the Companies Act, 1929 of the United Kingdom. Its general purpose is described in the side note placed against it in England and copied in Tasmania, namely "Power to acquire shares of shareholders dissenting from scheme or contract approved by majority."

For s. 130B to operate there must be "a scheme or contract involving the transfer of shares or any class of shares in a company to another company." The first point made in support of the appeal is that there was no scheme or contract: nothing but an offer to take transfers of shares. Then the section requires that "within a period of four months after the making of the offer in that behalf by the transferee company" (the description which the section gives to the company taking the shares) the scheme or contract must "have been approved by the holders of not less than nine-tenths in value of the shares affected". The second point made for the appellant is that the offer limited a period less than four months and, although within the period limited holders of ninety per cent of the shares in value accepted by making a transfer yet the offer was bad for limiting a period less than four months. In the third place some of the shares in the so-called transferor company were divided into groups—A to F. The holders of less than ninety per cent in value of the shares of group F approved and it was argued that it was not enough that the holders of ninety per cent of all the shares in the company approved; there must be an approval of ninety per cent in group F, which formed a "class" because, so it was said, classes of shares must separately provide the requisite majority of ninety per cent, otherwise the provision was not satisfied.