ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd

ACN 116 149 092 Pty Ltd, a company with a small share capital held by Lion Nathan Ltd, applied to discontinue its proceedings against Coopers Brewery Ltd. Coopers, while not opposing the discontinuance, sought an order for ACN to pay its costs. The proceedings arose from a dispute regarding the effect of a change in control of Lion Nathan Australia on Coopers' Articles of Association and the right of ACN to purchase shares in Coopers. The court was tasked with determining whether the discontinuance of the proceedings was appropriate and whether ACN should bear Coopers' costs.

The court examined whether the proceedings had become futile and whether ACN had acted reasonably in discontinuing them. It was established that the proceedings were part of a larger series of actions related to Lion Nathan Australia's failed takeover attempt of Coopers. The dispute centred on the interpretation of Coopers' Articles of Association, specifically whether the acquisition of a significant interest in Lion Nathan Ltd by Kirin Brewery constituted a "change in control" that would revoke certain pre-emptive rights. The court had previously ruled in favour of Coopers, determining that there had indeed been a change in control.

Given the context and the history of the proceedings, the court concluded that ACN's application to discontinue was appropriate. However, the court found that ACN should pay Coopers' costs associated with the discontinuance, including reserved costs and the costs of the motion. The court also granted Coopers leave to discontinue its cross-claim.

The court's final orders were: (1) ACN be granted leave to discontinue the proceedings; (2) ACN pay Coopers' costs occasioned by the discontinuance, including reserved costs and the costs of the motion; and (3) Coopers be granted leave to discontinue the cross-claim.