Australian Chemical Holdings Pty Ltd v Nuplex Industries Ltd

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 3301 of 1997

BETWEEN:

AUSTRALIAN CHEMICAL HOLDINGS LIMITED
ACN 000 121 479
APPLICANT

AND:

NUPLEX INDUSTRIES LIMITED
FIRST RESPONDENT

NUPLEX HOLDING PTY LIMITED
ACN 081 010 086
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

23 DECEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In this matter an application has been made for an order that, until further order of the Court, the respondents be restrained from making, sending or otherwise issuing any offer to acquire shares in the applicant which is in the terms of the offer attached to the Part A statement served by the respondents on the applicant on or about 16 December 1997 and which is based on such Part A statement. An undertaking has been proffered to the Court from the respondents to the effect that it will not dispatch its offers before 4.00 pm on Tuesday, 6 January 1998, unless each of the matters raised in a letter pointing out alleged defects in the statement are first addressed to the reasonable satisfaction of the clients of both parties and the ASC has granted any necessary modifications to the Part A statement to be made accordingly.

In my view, it is premature at this stage to grant any injunction and I think the appropriate course is that the application and notice of motion should be stood over with liberty to restore on 24 hours notice. In coming to this conclusion I think it is appropriate that the parties should negotiate with a view to determining whether they can agree on appropriate amendments to the Part A statement, if any are required, and to this end I think it is not appropriate to grant an injunction at this stage.

Accordingly, the orders which I make are that upon the undertaking being given to the Court as set out in paragraph numbered 1 of the letter from Allen Allen and Hemsley of 23 December 1997, I stand over the application and the notice of motion with liberty to restore on twenty-four hours notice. I note the further undertaking to the Court proferred by Mr Rares SC for the respondents that they would not require compliance with a request made under s 699 of the Corporations Law prior to 4.00 pm on 6 January 1998, on the same basis as the earlier undertaking referred to.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated: 23 December 1997

Counsel for the Applicant: Mr R V Gyles QC

Mr W G Muddle

Solicitor for the Applicant: Deacons Graham & James

Counsel for the Respondent: Mr S Rares SC

Solicitor for the Respondent: Allen Allen & Hemsley

Date of Hearing: 23 December 1997

Date of Judgment: 23 December 1997

CaseChat Overview and Summary

Australian Chemical Holdings sought an injunction against Nuplex Industries and Nuplex Holding, aimed at preventing the respondents from issuing an offer to acquire shares based on a specific Part A statement. The application was made in the Federal Court of Australia, New South Wales District Registry. The court was asked to determine whether an injunction should be granted to stop the respondents from proceeding with their share offer until certain issues were resolved. These issues included alleged defects in the Part A statement and whether the Australian Securities Commission had approved any necessary modifications.

The legal issues the court had to decide were whether it was appropriate to grant an injunction at that stage of the proceedings and whether the respondents should be allowed to proceed with their offer pending resolution of the identified issues. The court considered the undertakings provided by the respondents to address the issues raised and whether it was in the interests of justice to stand over the application to allow for negotiations between the parties.

The court held that it was premature to grant an injunction at that stage. Instead, it decided that the application and the notice of motion should be stood over with liberty to restore on 24-hour notice. This decision was made to allow the parties to negotiate and attempt to resolve the issues regarding the Part A statement. The court accepted the respondents' undertakings to address the issues and not to proceed with the offer until certain conditions were met.

The orders made by the court were that the application and the notice of motion would be stood over, subject to the respondents providing an undertaking to the court as detailed in the letter from Allen Allen and Hemsley of 23 December 1997. Additionally, the respondents were to be bound by an undertaking not to require compliance with a request under section 699 of the Corporations Law before 4:00 pm on 6 January 1998.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3301 of 1997

JUDGE:	TAMBERLIN J
DATE:	23 DECEMBER 1997
PLACE:	SYDNEY

Counsel for the Applicant:	Mr R V Gyles QC
Mr W G Muddle
Solicitor for the Applicant:	Deacons Graham & James
Counsel for the Respondent:	Mr S Rares SC
Solicitor for the Respondent:	Allen Allen & Hemsley
Date of Hearing:	23 December 1997
Date of Judgment:	23 December 1997