Ampol Limited v Catto

Ampol Limited sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The dispute concerned the confirmation of a proposed reduction of capital by Ampol, which involved the acquisition of shares. The applicant argued that the Court of Appeal had erred in its approach to assessing the fairness of the transaction.

The central legal issue before the High Court was the principles applicable to the confirmation of a reduction of capital, specifically how the fairness of the price offered for shares should be assessed under section 123 of the Companies Code. The applicant contended that the Court of Appeal had improperly imported notions of fairness from the Companies (Acquisition of Shares) Code into its consideration of section 123 of the Companies Code, thereby narrowing its focus beyond the objective market value of the shares.

The applicant argued that the Court of Appeal had assumed the price offered was fair by reference to objective market value, yet proceeded to determine fairness under section 123 by reference to concepts found in the Companies (Acquisition of Shares) Code. The applicant highlighted that the President of the Court of Appeal, while acknowledging that the court was not solely bound by market price, considered it legitimate to keep in mind the provisions of the Companies (Acquisition of Shares) Code to achieve a harmonious operation between the two codes. However, the applicant also noted the President's caution against courts filling perceived legislative gaps.