Keybridge Capital Ltd v WAM Active Ltd [2021] NSWCA 203

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Keybridge Capital Ltd v WAM Active Ltd [2021] NSWCA 203 Hearing dates: 17 June 2021 Decision date: 08 September 2021 Before: Bathurst CJ at [1]; White JA at [99]; Emmett AJA at [100] Decision: (1) Grant the applicant leave to appeal. (2) Order the appellant file a notice of appeal in the form of the draft notice of appeal contained in the White Folder within 14 days. (3) Vary Order 3 of the orders made by the primary judge as follows: "3 Order Keybridge Capital Limited to pay WAM Active Limited and the Australian Securities and Investments Commission their costs of the interlocutory process filed by WAM Active Limited on 16 July 2020 and amended on 15 October 2020, save to the extent that those costs relate to the seeking of the orders the subject of paragraph 2." (4) Otherwise dismiss the appeal. (5) Order the appellant pay the first and second respondents' costs of the appeal. Catchwords: CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – where notice declaring the offer free of conditions was given within the seven day period of the close of the offer – whether the notice was effective to free the offer of a condition – Corporations Act 2001 (Cth), s 650F CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – whether the condition related to the happening of an event or circumstance in s 652C(1) of the Corporations Act 2001 (Cth) Legislation Cited: Australian Securities and Investments Commission, ASIC Class Order [CO 13/521] (CO 13/521, 18 September 2018) Companies (Acquisition of Shares) Act 1980 (Cth) Companies and Securities Legislation Miscellaneous Amendment Act 1985 (Cth) Corporate Law Economic Reform Program Act 1999 (Cth) Corporations Act 1989 (Cth) Corporations Act 2001 (Cth) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Gerrard Co of Australasia Ltd v Johns Perry Ltd (1982) 7 ACLR 699 In the matter of Keybridge Capital Ltd [2020] NSWSC 1917 Keybridge Capital Ltd 04, 05 & 06 [2020] ATP 6 Keybridge Capital Ltd 08R, 09R and 10R [2020] ATP 9 R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106 Re Multiplex Prime Property Fund 01 and 02 [2009] ATP 18; (2009) 74 ACSR 248 Repco Ltd v Commissioner for Corporate Affairs [1978] 1 NSWLR 350 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Texts Cited: Explanatory Memorandum, Companies and Securities Legislation (Miscellaneous Amendments) Bill 1985 (Cth) Explanatory Memorandum, Corporate Law Economic Reform Program Bill 1999 (Cth) Explanatory Statement, ASIC Class Order [CO/13/521] (Cth) Company Law Advisory Committee to the Standing Committee of Attorneys-General, Parliament of the Commonwealth of Australia, Second Interim Report – Disclosure of Substantial Shareholdings and Takeover Bids, (Parliamentary Paper No 43, February 1969) Legal Committee of the Companies and Securities Advisory Committee, Anomalies in the Takeovers Provisions of the Corporations Law (Report, March 1994) Category: Principal judgment Parties: Keybridge Capital Limited (Applicant) WAM Active Limited (First Respondent) Australian Securities and Investments Commission (Second Respondent) Representation: Counsel: N Hutley SC with J Entwisle (Applicant) D Barnett with T Rogan (First Respondent) A Garsia (Second Respondent)