Australian Chemical Holdings Pty Ltd v Nuplex Industries Ltd

[1997] FCA 1549

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