Biotech International Ltd v Peptech Ltd

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.