Acacia Resources Ltd v Delta Gold Nl - [1999] VSC 369

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 7017 of 1999

ACACIA RESOURCES LIMITED (ACN 008 737 424)	Applicant
v
DELTA GOLD NL (ACN 002 527 899)	Respondent

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 and 29 September 1999
DATE OF JUDGMENT:	4 October 1999
CASE MAY BE CITED AS:	Acacia Resources Ltd v Delta Gold NL
MEDIA NEUTRAL CITATION:	[1999] VSC 369	First Revision 6 October 1999

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Corporations Law ss.739, 744, 750 and 1324 – takeover offer – Part A Statement – "material" matters (clause 17) – offeror's "intentions" (clause 20)

Injunction – disclosure – amendment to Part A – supplementary material

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A.J. Myers QC with Mr J. Beach	Blake Dawson Waldron
For the Respondent	Mr N. Hutley SC with Mr L. Glick	Clayton Utz

HER HONOUR:

The applicant, Acacia Resources Limited ("Acacia") applies pursuant to the relevant provisions of the Corporations Law to restrain the respondent, Delta Gold NL ("Delta") from dispatching a Part A Statement and form of offer by Delta to the shareholders of Acacia.

The application was instituted with urgency in light of the likely dispatch of the offer to shareholders of Acacia on or after 29 September 1999. In summary, Acacia alleges that the Part A Statement and form of offer do not comply with s.750 of the Corporations Law, are materially misleading and omit material matters in breach of s.704 of the Law and are misleading and deceptive in breach of s.995 of the Corporations Law, s.52 of the Trade Practices Act 1974 and s.12DA of the Australian Securities and Investments Commission Act 1989. The application before me was an application for an interlocutory injunction to retrain the dispatch of the Part A Statement and form of offer and, also, subsequent documents prepared by Delta after the Part A Statement, such restraint to operate until the trial of the proceeding or further order.

On 2 September 1999 Delta issued an announcement to the Australian Stock Exchange that it intended to make a takeover offer for all of the issued shares in Acacia in consideration of the issue of fully paid ordinary shares in Delta on a one for one basis. The share offer was, therefore, a scrip offer. The announcement of the takeover by Delta referred to the existence of an agreement between Delta and Placer (Granny Smith) Pty Ltd ("Placer") and that agreement is referred to hereafter as "the Placer agreement".

It is necessary before turning to the Part A Statement to set out background matters. Near Laverton in Western Australia is located the Sunrise Dam gold mine. At that site there is an open pit mine called "Cleo" operated by Acacia. Material from the Cleo deposit owned by Acacia is mined at the Sunrise Dam gold mine. Adjacent to the Sunrise Dam gold mine is the Sunrise deposit which is owned by Sunrise Mines Limited being a wholly owned subsidiary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] VSC 369
Decision Date: 4 October 1999

CaseChat Overview and Summary

Acacia Resources Ltd initiated legal proceedings against Delta Gold NL, seeking an injunction to prevent Delta from amending its Part A Statement in relation to a takeover offer. The legal issues centred on the scope of disclosure obligations under the Corporations Act, specifically sections 739, 744, 750, and 1324, as well as the definition of "material" matters under clause 17, and the "intentions" of the offeror under clause 20. The court had to determine whether Delta's proposed amendments to its Part A Statement constituted material changes that required further disclosure and whether such amendments would be permissible under the statutory and contractual frameworks governing takeover offers.

The court examined the statutory provisions and contractual obligations in detail, focusing on the need for full and accurate disclosure in a takeover offer. It held that Delta's proposed amendments introduced new information that could significantly affect the decision-making process of target shareholders. The court concluded that the amendments were indeed material changes, as they altered the offeror's intentions in a way that warranted further disclosure. Consequently, the court granted the injunction sought by Acacia Resources Ltd, preventing Delta from proceeding with the amendments to its Part A Statement without proper disclosure. The court's decision emphasised the importance of transparency and integrity in the context of corporate takeovers.

The court's final orders included a permanent injunction restraining Delta Gold NL from implementing the proposed amendments to its Part A Statement unless and until it provided adequate disclosure to the target shareholders. Additionally, the court ordered Delta to comply with all relevant disclosure requirements under the Corporations Act and the contractual terms governing the takeover offer. The injunction underscored the necessity of ensuring that shareholders are fully informed about all material aspects of a takeover, thereby safeguarding their rights and enabling them to make informed decisions.

Orders