Ampolex Ltd v Mobil Exploration & Producing Australia Pty Ltd

Ampolex Limited sought relief in respect of two Part A statements served on it by Mobil Exploration & Producing Australia Pty Limited (MEPA). The claim was based on Part A of s.750 (cl.8, 17 and 20), ss.698, 746(4) and 995(2) of the Corporations Law. Ampolex obtained interim orders on 13 March 1996, restraining MEPA from sending the Part A statements, or any offer pursuant to them to any of Ampolex's shareholders. MEPA was also restrained, on an interim basis, from acquiring certain convertible notes in Ampolex, except on specified terms. MEPA was granted leave to file a cross claim. The cross claim related in part to a revised Part A statement that had been prepared by MEPA and annexed to an affidavit filed shortly before the hearing. The cross claim was also dealt with on a final basis at the hearing. The interim relief granted to Ampolex was continued pending the handing down of this judgment, but subject to the deletion of the order relating to the convertible notes.

The court found that the original Part A statement contravened the Corporations Law in two respects: (i) it failed to disclose MEPA's assessment of the likely outcome of the convertible note litigation; and (ii) it contained material that was likely to mislead shareholders of Ampolex. The court rejected the argument that the revised Part A statement and offer should be approved by the court under ss.739 and 743 of the Corporations Law. The court concluded that the revised Part A statement went beyond mere clarification or amplification of the original and thus ought not to be the subject of relief under s.739. The court also found that MEPA had not discharged the onus of showing that the contraventions of the Corporations Law were due to inadvertence or mistake or any of the other matters referred to in s.743(3) of the Law. The court made permanent orders restraining MEPA from sending out the original Part A statement or any offer pursuant to that statement to shareholders of Ampolex. MEPA's cross claim was dismissed. Ampolex was to bring in short minutes of order to give effect to this judgment.