BIOTECH INTERNATIONAL LTD -v- PEPTECH LTD [2000] WASC 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 120
Case No:	CIV:1477/2000	Heard:	3 MAY 2000
Coram:	OWEN J	Delivered:	11/05/00
No of pages:	21	Judgment Part:	1 of 1
Result:	Injunction granted
PDF Version

Parties:	BIOTECH INTERNATIONAL LTD PEPTECH LTD
Catchwords:	Corporations Take-over offers Minimum acceptance condition Condition requiring offeror to give notice of waiver to target Whether sending of notice by facsimile to a business office effective service Whether sending of s 663 notice to Perth office of ASX compliance with s 663(8)
Legislation:	Corporations Law, s 109H, s 109X, s 663, s 777
Case References:	Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531 Capper v Thorpe (1998) 194 CLR 342 Fosbroke-Hobbes v Airwick Ltd (1937) 1 All ER 108 Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd (1958) 3 All ER 7 Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26 Eagles v Eagles [1960] VR 400 Gerrard Co of Australasia v Johns Perry Ltd (1983) 1 ACLC 646 Players Pty Ltd v Interior Projects & Ors (1996) 14 ACLC 918 Re Alpina Pty Ltd (1977-1978) CLC 40 Tayros Holdings Pty Ltd v Dyar (1997) 15 ACLC 1652

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BIOTECH INTERNATIONAL LTD -v- PEPTECH LTD [2000] WASC 120 CORAM : OWEN J HEARD : 3 MAY 2000 DELIVERED : 11 MAY 2000 FILE NO/S : CIV 1477 of 2000 BETWEEN : BIOTECH INTERNATIONAL LTD

Applicant

AND

PEPTECH LTD

Respondent

Catchwords:

Corporations - Take-over offers - Minimum acceptance condition - Condition requiring offeror to give notice of waiver to target - Whether sending of notice by facsimile to a business office effective service - Whether sending of s 663 notice to Perth office of ASX compliance with s 663(8)

Legislation:

Corporations Law, s 109H, s 109X, s 663, s 777

Result:

Injunction granted

(Page 2)

Representation:

Counsel:

Applicant : Mr N W McKerracher QC & Mr P S Fitzpatrick

Respondent : Mr K J Martin QC & Mr S A N Salter

Solicitors:

Applicant : Clayton Utz

Respondent : Fearis Salter Power Shervington

Case(s) referred to in judgment(s):

Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531
Capper v Thorpe (1998) 194 CLR 342
Fosbroke-Hobbes v Airwick Ltd (1937) 1 All ER 108
Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd (1958) 3 All ER 7
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653
NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26

Case(s) also cited:

Eagles v Eagles [1960] VR 400
Gerrard Co of Australasia v Johns Perry Ltd (1983) 1 ACLC 646
Players Pty Ltd v Interior Projects & Ors (1996) 14 ACLC 918
Re…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WASC 120
Decision Date: 11 MAY 2000

CaseChat Overview and Summary

Biotech International Ltd initiated legal proceedings against Peptech Ltd, bringing the dispute before the court. Biotech, the offeror, had made a take-over bid for Peptech, the target company. The crux of the dispute centred on the validity of a minimum acceptance condition incorporated in the offer documents. This condition mandated that Biotech notify Peptech of any waiver of the minimum acceptance condition. The question arose as to whether Biotech's method of delivering this notice, specifically by facsimile to a business office, satisfied the statutory requirements under the Corporations Act.

The court was tasked with determining two primary issues. First, whether Biotech's transmission of the notice via facsimile to a business office constituted effective service under the relevant statutory provisions. Second, whether sending a section 663 notice to the Perth office of the Australian Securities Exchange (ASX) Compliance department met the statutory requirement under section 663(8) of the Corporations Act. The court had to interpret the statutory language and relevant case law to ascertain the proper method of delivering such notices.

The court concluded that Biotech's facsimile transmission to a business office did indeed constitute effective service. It found that the statutory requirements were met when the notice was sent to a location where the target company could reasonably be expected to receive it. Additionally, the court held that sending a section 663 notice to the Perth office of ASX Compliance was sufficient to comply with the statutory requirement under section 663(8). This interpretation aligned with the statutory purpose, ensuring that the target company received the necessary notification.

Consequently, the court granted Biotech International Ltd an injunction, permitting it to proceed with its take-over bid under the terms specified in the offer documents.

Orders

Orders of the court

Injunction granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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