BHAGAT V. ROYAL & SUN ALLIANCE LIFE ASSURANCE AUSTRALIA LIMITED & ORS. [2000] NSWSC 159

New South Wales Supreme Court

CITATION : BHAGAT V. ROYAL & SUN ALLIANCE LIFE ASSURANCE AUSTRALIA LIMITED & ORS. [2000] NSWSC 159 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3018/99 HEARING DATE(S) : 09/03/00 JUDGMENT DATE : 17 March 1999

Hari Bhagat - Plaintiff Royal & Sun Alliance Life Assurance Australia Ltd. - 1st Defendant PARTIES : Duncan Boyle - 2nd Defendant Tyndall Australia Limited - 3rd Defendant Michael Wilkins - 4th Defendant JUDGMENT OF : Hodgson CJinEq at 1

Plaintiff in person COUNSEL : Mr. S. Robb QC for 1st and 2nd defendants Mr. A. Bell for 3rd and 4th defendants The plaintiff acted for himself SOLICITORS : Middletons Moore & Bevins, Sydney for 1st & 2nd defendants Mallesons Stephen Jaques, Sydney for 3rd & 4th defendants CATCHWORDS : CORPORATIONS - Takeover offers - Application by dissenting offerees - Need for clarity and expedition. LEGISLATION CITED : Corporations Law s.701 DECISION : See par.18 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Friday 17th March 2000

NO. 3018 OF 1999 BHAGAT V. ROYAL & SUN ALLIANCE LIFE ASSURANCE AUSTRALIA LTD. & ORS.

JUDGMENT

1 On 15th February 2000, I delivered a judgment in these proceedings, in which I made certain orders including an order for costs against Mr. Bhagat. However, when I handed the judgment down in Court, I offered Mr. Bhagat an opportunity to make further submissions on costs if he wished to do so. Mr. Bhagat did wish to do so, and in those circumstances, I stayed the order in relation to costs, and I heard submissions on costs on 9th March 2000. 2 One matter which Mr. Bhagat raised in his submissions requires me to re-visit one aspect of the judgment. Mr. Bhagat pointed out that the time for making an application under s.701(6) of the Corporations Law did not expire until fourteen days after a dissenting offeree had been given a statement under s.701(9); and in those circumstances, he submitted that his summons, filed within that time, was a valid application under s.701(6). He pointed out that he had asked for a list of dissenting offerees on 24th June 1999, and that his summons was filed on 6th July 1999. 3 In order to consider this submission, it is necessary to have regard to s.701 of the Corporations Law, which is in the following terms: 701.(1) For the purposes of this section: (a) where takeover offers have been made under a full takeover scheme in respect of shares in a class of shares, the shares in respect of which the offers were made (other than shares to which the offeror was entitled when the first of the offers was made) are shares subject to acquisition; (b) where a takeover announcement has been made in respect of shares in a class of shares, the shares in that class (other than shares to which the offeror is entitled) are shares subject to acquisition; (c) a reference to outstanding shares is a reference to: (i) shares subject to acquisition by virtue of paragraph (a) in respect of which a takeover offer was made but has not been accepted, excluding shares acquired by the offeror otherwise than under the takeover scheme; or (ii) shares subject to acquisition by virtue of paragraph (b) in respect of which an offer made under a takeover announcement has not been accepted, excluding shares acquired by the offeror otherwise than by the acceptance of offers made under the takeover announcement; and (d) a reference to a dissenting offeree is a reference to: (i) in relation to shares in respect of which takeover offers have been made---a person who is the holder of shares that are outstanding shares by virtue of subparagraph (c)(i); and (ii) in relation to shares in respect of which a takeover announcement has been made---a person who is the holder of shares that are outstanding shares by virtue of subparagraph (c)(ii).