Bisan Ltd v Cellante
[2002] VSC 430
•15 October 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL & EQUITY DIVISION
No. 7431 of 2002
| BISAN LTD | Plaintiff |
| v | |
| MASSIMO LIVIO CELLANTE & ORS | Defendants |
| - and between - | |
| No. 7433 of 2002 | |
| EROMANGA HYDROCARBONS NL | Plaintiff |
| v | |
| MASSIMO LIVIO CELLANTE & ORS | Defendants |
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JUDGE: | DODDS-STREETON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9, 10 October 2002 | |
DATE OF JUDGMENT: | 15 October 2002 | |
CASE MAY BE CITED AS: | Bisan Ltd v Cellante & Ors; Eromanga v Cellante & Ors | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 430 | |
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CORPORATIONS ACT s.249F, s.250A, s.250B, s.250BA, s.259Q – Chapter 6; general meeting called by members with 5% of voting power – Whether requisite percentage of voting power satisfied – Effect of transfer of voting shares constituting the statutory percentage where full-paid vendor remains registered but withdraws authority for action under s.249F(1) before meeting is called and held.
PROXY APPOINTMENT FORMS – Failure to comply with the requirements of s.250B and s.250BA by specifying return of proxy appointment forms to the company – Possible inappropriate dealing with proxy appointment forms where no initial receipt by company – Whether meeting to which such proxy appointment forms apply should be restrained – Whether proxy appointment forms which comply with s.250A of the Corporations Act are valid, despite non-compliance with the company’s constitution.
WHETHER MEETING CALLED for the purpose of appointing persons to the board where they have not made a takeover bid in accordance with Chapter 6 of the Corporations Act is improper.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Bloch | HS Wise Gershov & Co |
| For the Defendants | Mr R. Cameron | Tress Cocks Maddox |
HER HONOUR:
The Parties
Bisan Ltd (“Bisan”) and Eromanga Hydrocarbons NL (“Eromanga”) are the plaintiffs in each of two related proceedings. Both plaintiffs are public companies listed on the Australian Stock Exchange. Each company has a common board, comprising Messrs Goldhirsch, Shnider and Sharp.
Each company has a significant shareholding in the other, held indirectly through a wholly owned subsidiary.
The defendants in the Bisan proceeding are Massimo Livio Cellante, Ramon Jimenez, Licia Nunzia Buccheri, Karmala Pty Ltd and Googley Pty Ltd. The defendants in the Eromanga proceeding are Messrs Cellante, Jimenez, Benchmark Pty Ltd, Aliton Pty Ltd, FH Nominees Pty Ltd and Stuart Lindsey Bell.
Orders Sought
The principal relief sought by summons in each proceeding is an order restraining the holding of a general meeting of each company. The proposed general meetings were called by the defendants pursuant to s.249F of the Corporations Act (“the Act”). They were scheduled to be held on 15 October 2002. On 10 October 2002 I made orders restraining the holding of the meetings. The plaintiffs also seek additional orders, including orders requiring Messrs Cellante and Jimenez to disclose their interest in shares in the companies and restraining them until further order from acquiring interests in shares in the plaintiff companies or making offers or invitations to shareholders to purchase shares in the plaintiffs. Due to the urgency of the application to restrain the meetings, I did not provide full written reasons for my decision on 10 October 2002. Further, I did not determine the applications for additional relief. I do so now. The applications and arguments have proceeded as for interlocutory injunctions and I have accordingly approached the matter on that basis. Nevertheless, the orders restraining the general meetings scheduled for 15 October 2002 constitute final relief in respect of those meetings, and it may be that any injunction would in the usual case be founded on s.1324 of the Act.
Issues in Dispute
The plaintiffs contend that: (a) in relation to Bisan only, the minimum 5% of shareholders required by s.249F(1) was not satisfied, in that Berhel Nominees Pty Ltd (“Berhel”), one of the shareholders comprising the statutory minimum percentage, on or about 12 August 2002, revoked its power of attorney authorising Mr Cellante to act on its behalf in calling and arranging to hold the meeting; (b) that the Notices of Meeting, the attached proxy forms and accompanying letters to shareholders contain a number of defects and are misleading. In particular, the plaintiffs principally allege:
(1)Non-compliance with s.249X(2) of the Act, which provides that the appointer “may” specify proportions.
(2)The proxy appointment forms are required to be returned to Omnium Corporate Pty Ltd rather than to the respective companies, in contravention of s.250B of the Act.
(3)The proxy forms sent with the Notices of Meeting fail to comply with the form required by the companies’ respective constitutions.
(4)The meetings were called for an improper purpose contrary to s.249Q of the Act. The alleged improper purpose, is broadly, the subversion of the takeovers code in Chapter 6 of the Act by Messrs Cellante, Jimenez and an associate.
Due to the constraints of time, in these reasons I do not deal exhaustively with the matters raised in argument but confine the discussion to the principal issues. Save for the issue in relation to Berhel, which is relevant to Bisan only, the same issues are relevant to each proceeding. The discussion below applies to both proceedings unless otherwise indicated.
Bisan Proceeding
Was the requisite percentage specified in s.249F(1) of the Act satisfied?
Section 249F of the Act provides:
“(1)Members with at least 5% of the votes that may be cast at a general meeting of the company may call and arrange to hold, a general meeting. The members calling the meeting must pay the expenses of calling and holding the meeting.
(2)The meeting must be called in the same way – so far as is possible – in which general meetings of the company may be called.
(3)The percentage of votes that members have is to be worked out as at the midnight before the meeting is called.”
Section 249F was introduced into corporations legislation by the Company Law Review Act 1998. It removed the restriction upon the right of 5% of relevant members to call the meeting “only so far as the articles do not make other provision” which was imposed by the previous corresponding section.
In contrast to s.249D, the expanded provision embodied in s.249F empowers the specified percentage of members to call and hold the meeting themselves, rather than to require the company to do so.
The statutory entitlement recognises the importance of the right of a relatively small minority to be heard, to ventilate their concerns and to play an active role in the company’s affairs. However, the calling of a general meeting is potentially disruptive, may distract management from its principal role and may consume corporate resources. In my opinion, the preconditions enlivening the entitlement should be strictly observed.
Section 249F(1) of the Act prescribes a minimum requirement of “members with at least 5% of the votes that may be cast at a general meeting”. By the Acts Interpretation Act 1901 (Cth) s.23, that terminology empowers a single member with the requisite percentage to call the meeting. By s.249F(3), the percentage of votes that members have is to be worked out at the midnight before the meeting is called.
While the issue was not addressed in argument, it would appear that a meeting is “called” when the notices are taken to have been received. (See ss.249H and 249J(4).) The percentage of votes to be worked out under s.249F(3), by inference, must be votes which the relevant member or members may cast at a general meeting.
On 5 August 2002 Omnium Corporate Pty Ltd (“Omnium”), on behalf of Cellante, as the attorney of four corporate shareholders, wrote to Bisan stating that the shareholders resolved to call a meeting. The accompanying notice dated 5 August 2002 stated that the members convening the meeting were Wilhelm Pty Ltd, Berhel Nominees Pty Ltd, Karmala Pty Ltd and Googley Pty Ltd. Together the members were stated to be entitled to shares entitling them to exercise 6.01% of the votes at a general meeting of Bisan.
On 12 September 2002 the notice dated 5 August 2002, together with an accompanying letter dated 12 September 2002 addressed to “Dear Fellow Shareholder” and a proxy form, were sent to shareholders of Bisan. On 12 September 2002, corresponding material in relation to Eromanga was sent to shareholders of Eromanga.
Berhel Nominees Pty Ltd (“Berhel”) owned 1.21% of the shares. Without its participation, the 5% minimum would not be satisfied. A power of attorney was executed by Berhel on 4 August 2002. It relevantly stated that Berhel as principal authorised the attorney, Cellante, “to do all acts and things and sign all documents that may be necessary or required to convene a meeting of members of Bisan Limited (ACN 006 301 800) … in pursuance of section 249F of the Corporations Act (2001) (Cth), for the purposes of removing all the directors of the company from office and appointing new directors in their stead”.
On 4 August 2002 Berhel executed a transfer of shares to Licia Buccheri in consideration of $8,000 which was paid on the same date.
From the date of the transfer, Licia Buccheri was the beneficial owner of the Berhel shares (subject to a trust in favour of Messrs Cellante and Jimenez) and as such had the right to direct the vendor how to vote them. However, the purchaser’s right to “dictate the manner in which voting rights attaching to those shares were exercised” did not affect the fact that Berhel, as registered owner, remained the “member”of the company which remained entitled to treat Berhel as “the person entitled to exercise rights in respect of those shares”.[1] There is a distinction between dictating the manner in which voting rights attached to purchased shares may be exercised, on the one hand, and, on the other hand, dictating the vendor’s participation in calling and arranging to hold a general meeting pursuant to s.249F of the Act. In my opinion, it is strongly arguable that the purchaser required the vendor’s consent and authority in order to cause the vendor to participate in calling and arranging to hold a meeting under s.249F of the Act.
[1]ReFernlake Pty Ltd (1994) 13 ACSR 600 at 605.
Berhel is and was the “member” of the company pursuant to the definition of s.231 of the Corporations Act as at 5 August 2002, and thereafter while it remained registered. The purchaser attempted to register the transfer. It would appear that Computershare received Buccheri’s transfer for registration on or about 21 August when it was registered, but subsequently the registration was withdrawn as a result of Mr Goldhirsch’s advice that as he suspected that the transfer contravened the Act, the directors would exercise their discretion to refuse registration. I was informed that registration of the transfer has not yet occurred.
On 12 August 2002 Berhel, by letter and facsimile, informed Cellante that the power of attorney dated 4 August 2002 should be considered revoked. If the revocation were effective, Berhel’s authority for all subsequent acts and notices necessary for calling and holding the meeting would be wanting. The prerequisite percentage for s.249F would not be satisfied.
The letter of revocation by Berhel dated 12 August 2002 did not comply with the requirements of s.127 of the Act. The revocation was signed by one director only.
However, Mr Cellante, by letter dated 14 August 2002, expressly acknowledged that the power of attorney given by Berhel was revoked. Accordingly, despite the formal defects, it would appear that from 14 August 2002 the revocation was effective. If so, for all subsequent acts, notices and matters necessary for calling and holding the meeting of Bisan under s.249F there was no consent or authority from Berhel. As such, there is at least a serious question whether the minimum statutory percentage required by s.249F(1) was lacking.
Defects in relation to Proxy Appointments
The right to appoint, and vote by, a proxy is an extremely significant statutory entitlement, currently embodied in s.249X of the Act. That section is mandatory for public companies.
If a statutory provision is not a replaceable rule, s.135(2) of the Act (which permits displacement or modification by the company’s constitution) does not apply. Therefore, any provision of a public company’s constitution which is inconsistent with the requirements or terms of s.249X would be ineffective.
Similarly, the requirements of s.249Y, 250A, 250B and 250BA of the Act would override any inconsistent provision in the corporate constitution.
Inconsistency with s.249X(2) of the Act
Bisan’s constitution, by article 85, provides that a member may appoint not more than two proxies to vote on his behalf and may direct the proxy or proxies to vote either for or against each of any resolution. Where a member appoints two proxies, the appointment shall be of no effect, unless each proxy is appointed to represent a specified proportion of the member’s voting rights.
Article 85 of Bisan’s constitution is inconsistent with s.249X(3) of the Act, pursuant to which the appointment of two proxies without specification of the proportion assigned to each is valid and results in each proxy being entitled to exercise 50% of the votes.
The “Note” at the base of the Notice of Meeting (“Notice”) sent to shareholders of each company does not accurately represent the applicable statutory requirements.
The Proxy Form itself, in paragraph 3, states that where more than one proxy is appointed, the appointer ”must” specify the proportion, or half will be appointed to each proxy. In fact, by s.249X(2), the appointer “may” specify the proportion. The end result of the somewhat inconsistent information contained in the Notice and the Proxy Form is that persons intending to appoint two proxies might not understand that they have the option not to specify any proportions. In my opinion, it is unlikely that any detriment or prejudice would result from such a misapprehension, if it existed.
Inconsistency with s.250B of the Act
A more significant defect relied on by the plaintiffs is that the “Note” on the Notice states that proxies may be sent or delivered to Omnium, or may be faxed to Omnium’s facsimile number. The “Note” also states that the Proxy Form must be lodged not less than 48 hours before the time when the meeting is to be held. The attached Proxy Form also specifies Omnium as the recipient for lodgement (para 9) and, in paragraph 5, states “to be effective, proxy forms duly completed and signed must be lodged as directed below” (that is, as set out in paragraph 9 of the Proxy Form).
That direction is contrary to the requirements of s.250B of the Act, which relevantly states:
“(1)For an appointment of a proxy for a meeting of a company’s members to be effective, the following documents must be received by the company at least 48 hours before the meeting
-the proxy appointment
-if the appointment is signed by the appointor’s attorney the authority under which the appointment was signed or a certified copy of the authority.”
Section 250B(3) of the Act specifies what constitutes receipt by the company.
By s.250(4) of the Act, the company’s constitution, or the notice of meeting may reduce the period of 48 hours. In this case, neither the constitutions nor the Notices reduced the 48 hour period.
Section 250BA of the Act imposes a requirement for a listed company to specify in the notice a place and a facsimile number and an electronic address for listed companies. Section 250BA must logically refer to notices sent by the company.
Mr Cameron, counsel for the defendants, referred to the defendants’ readiness to provide an undertaking to deal with all proxies received by them in respect of the meetings in compliance with s.250B of the Act and lodge them with the relevant companies at least 48 hours before the meeting. He contended that such an undertaking would overcome the defect and that appointments of proxies should be construed benevolently.
Mr Bloch, counsel for the plaintiffs, pointed out that it would be impossible to lodge any proxies received by Omnium at the last minute with the companies within the statutory time span. No doubt strict compliance would not be possible in respect of proxies received at the very point of expiry of the stipulated period. If the undertaking were otherwise a sufficient remedy, that circumstance would appear relatively insignificant.
Much more significant, in my opinion, is the fact that the relevant proxies would be received by each company only following initial receipt by a third party. While it is liberal in affording rights to 5% of shareholders to call a general meeting, the Act in s.250B expressly stipulates receipt by the company within the minimum period. While the company’s constitution may reduce the minimum period (see s.250B(5)) the constitution cannot modify the requirement for receipt by the company.
Further, s.250BA(1) of the Act which applies to listed companies (and therefore to Bisan and Eromanga) provides:
“In a notice of meeting for a meeting of the members of a company; the company:
(a)must specify a place and a facsimile number; and
(b)may specify an electronic address;
for the purposes of receipt of proxy appointments.”
By s.250BA(3) the section applies despite anything in the company’s constitution.
Section 250BA is directed at the commonly encountered situation in which the company convenes the meeting. It can be inferred that the place and facsimile numbers referred to are those of, or nominated by, the company itself.
Section 250F(2) provides that a s.249F meeting must be called in the same way, so far as is possible, in which general meetings of the company may be called. It appears strongly arguable that notices of a s.249F meeting for listed companies must specify the company’s address and facsimile number for return of proxies, or an address and fax number nominated by the company.
The statutory requirement that the proxy appointments be returned to the company at least 48 hours before the meeting would appear to reflect the purpose of ensuring that the directors may exercise their entitlement, and fulfil any obligation, to inspect and assess the proxy appointments.[2] The result of the proxy votes can then be announced to the meeting. An orderly and efficient meeting is facilitated.
[2]Armstrong v Landmark Corporation Ltd (1967) 1 NSWR 13.
However, a further purpose for the relevant statutory requirements applicable to listed companies at least, may be to secure the integrity of the voting process.
If that be the case, direct return to the company or a place nominated by it, is required. Ultimate return to the company following intermediate receipt by another entity, would not fulfil the purpose. See in this context, Project Blue Sky v ABA. [3] I also accept the reasoning of Lockhart J in Australian Innovation Ltd v Petrovsky,[4] applied in a related context.
[3](1998) 194 CLR 344 at 389-391.
[4]21 ACSR 218 at 221.
The legislation does not expressly state that the nomination of an intermediate recipient will render a notice of meeting or a proxy appointment ineffective or invalid. However, in my opinion, the legislation’s insistence on receipt by the company appears to contemplate a receipt by an entity managed and controlled by persons subject to onerous fiduciary duties in relation to the proxies, which will safeguard the actual and apparent integrity of the corporate voting process. The interception of proxy appointment forms by an intermediate party who is under no fiduciary duty or other apparent obligations in relation to their safeguarding, entails an inherent exposure to the possibility of filtering or other inappropriate handling. In my opinion, it could constitute a grave defect in the electoral process in respect of any contemplated meeting. In the present case, the specified recipient in both the Notices and the Proxy Forms is not a disinterested party, but in my view, the defect does not depend on that circumstance. The apparent, as well as the actual integrity of the corporate electoral process, is important.
Any election or other resolution on which such proxy votes were cast would be susceptible to challenge on the grounds that the integrity of the voting process required by the Act could not be established. The problem could not necessarily be overcome by simply disregarding the proxy votes lodged with an intermediate party. Such a course would disenfranchise persons who sought to exercise their votes by proxy. Moreover, it would not be possible confidently to conclude that the relevant resolution would have been carried in any event without the voting of such disregarded proxy votes, as the total number of proxies received would be open to question.
In my opinion, the defects in the Notices and Proxy Forms are not merely technical, but such that they would or may cause substantial injustice that could not be remedied by any order of the court, in the circumstances of the present case. Further, I am not satisfied that the validation of such irregularities would not cause, or be likely to cause, injustice to any person.
I accept that, as Mr Cameron contended, in general proxies should be construed benevolently so that members seeking to rely on them are not denied their voice in the corporate democratic process. However, in the circumstances of this case, a finding that the proxy appointments are defective will not operate to deny appointers a vote on a matter to be decided. Rather, the proposed meeting as a whole will not occur. This would not preclude relevant resolutions from being considered by a different meeting, which is not subject to challenge.
Orders made on 10 October 2002
For the above reasons, I was satisfied that in the circumstances, there was at least a serious question to be tried as to whether the scheduled meetings could validly take place and vote effectively upon the proposed resolutions, on the basis of the defect in the Proxy Form and Note alone. In the case of Bisan, I also considered that there was at least a serious question to be tried on whether the necessary percentage of members called and arranged to hold the meeting pursuant to s.249(1), on the ground that Berhel effectively revoked its power of attorney.
As to the balance of convenience, I was satisfied that it favoured the granting of the injunction. A disputed election result, vulnerable to challenge, would not be in the interests of any party and would clearly be to the detriment of shareholders. I formed the opinion that the meetings scheduled for 15 October should not take place. On 10 October, I made orders restraining the holding of the meetings and requiring that notice of their cancellation be sent to members.
Additional Issues
The plaintiffs relied on a number of additional matters as the basis for injoining the holding of the general meetings and for making the further orders sought.
It was not necessary to determine those additional issues on 10 October 2002 as I had already determined that there were sufficient grounds to restrain the holding of the general meetings, as discussed above. For the sake of completeness and in order to determine whether further orders should be made, I shall now consider the additional matters.
Letter to Shareholders
The plaintiffs allege that the salutation “Dear fellow shareholder” in the letters to shareholders dated 12 September 2002 is misleading or deceptive, in that the letter is signed by Cellante and Jimenez, who are not shareholders. I am not satisfied that that is correct when taken in context, as the letter refers to “several significant shareholders” who have exercised the statutory right to convene a meeting. Those shareholders are identified on the accompanying Notices, and Mr Cellante is shown to be their appointed attorney. Mr Cellante also deposes that he and Mr Jimenez had acquired a beneficial interest in the parcel of Bisan shares transferred to Mr Buccheri and in shares in Eromanga, by 12 September 2002. In any event, in my opinion, the matter is of minor significance.
Failure of Proxy Forms to Comply with Constitution
A further alleged defect in relation to the proxy appointments of each company is the non‑conformity of the Proxy Forms with those prescribed or authorised by the constitution of each company.
In the case of each company, the Notices were accompanied by a Proxy Form which nominates Mr Cellante as the appointer’s proxy if the appointer fails to insert an individually selected proxy.
The Proxy Form does not conform to that prescribed under Eromanga’s constitution by article 59, which sets out a form of instrument of proxy containing two blank spaces for the nomination of the proxy. Further, the plaintiffs contend that the Proxy Form does not accord with article 85 of Bisan’s constitution, which provides that the instrument of proxy “may be in the usual common form or in such other form as the Directors may from time to time prescribe or accept”. Mr Bloch, counsel for the plaintiffs, submitted that the “usual common form” is that whereby the chairman is appointed proxy in the absence of a nominated appointee, and that the directors did not prescribe or accept the nomination of Mr Cellante as the “fall back” proxy. The defendants disputed that the usual common form of Bisan’s proxy appointment is one which nominates the chairman. There is no affidavit deposing to the “usual common form” of Bisan’s proxy appointment.
Given my conclusions on other issues, the issue is of theoretical importance only. Accepting that the usual common form of Bisan’s proxy appointment is not one which nominates Mr Cellante as the proxy in the event that no proxy is inserted by the appointer, does the legislation permit members who call a meeting under s.249F to include a form of proxy which does not conform to that prescribed by the corporation’s constitution, and in particular, which nominates a proxy of their choice.
If it is permissible for such members to specify a “fall back” proxy, it may pose significant consequences for corporate control. It has long been recognised that the maintenance of control by incumbent management is fortified by the effects of shareholder apathy and the fact that the chairman is frequently appointed the proxy of members who do not vote in person.
The Act does not prescribe a form of proxy appointment. In the absence of any inconsistent statutory provision, the provisions of the corporation’s constitution, if any, would apply (see s.134). In the present matter, in the case of Eromanga, in my opinion the proxy form does not accord with that prescribed by the constitution. In the case of Bisan, there is at least a serious question as to whether the proxy form complies.
However, it would appear that s.250A of the Act is inconsistent with the prescription of any form of proxy appointment by the company’s constitution. Section 250A appears to be aimed at avoiding potential detriment caused by the invalidity of proxy appointments.
By s.250A(1), provided that a proxy is signed and contains at least the member’s name and address, the company’s name, the proxy’s name or name of the office held by the proxy and the meetings at which the appointment may be used, it will be valid. The company’s constitution may provide that an appointment will be valid if it contains less than the specified information (s.250A(2)). However, s.250A does not provide that the company’s constitution may validly provide that an appointment of a proxy will be invalid if it includes additional features.
Section 250A is not exhaustive of the conditions for validity of proxy appointments. The requirement of s.250B must also be satisfied if the appointment is to be effective.
In the circumstances, it is unnecessary for me to express a concluded view on this question. However, I consider that, although it may have unexpected consequences in the context of s.249F, the Act does not require a proxy appointment to conform to a form or requirements prescribed by the company’s constitution, provided that the specific statutory requirements are satisfied.
If this be correct, members calling a meeting under s.249F may legitimately provide proxy appointments which nominate a “fall back” proxy of their choice.
Meetings Convened for Improper Purpose - Contravention of Part 6 of the Act
The plaintiffs further allege that the meetings were convened for an improper purpose, contrary to s.249Q of the Act. The stated purpose of the meetings is to consider, and if thought fit, pass resolutions removing the incumbent boards of each company and appointing in their place Messrs Cellante, Jimenez, Goldsmith and Gelfand.
That stated purpose is proper. The entitlement of the members of a public company to remove a director by resolution is recognised and regulated by the Act (see ss.204D – 203E).
The plaintiffs, however, assert that the ulterior purpose of calling the meeting is to effect a takeover of the companies by the defendants Cellante, Jimenez and Buccheri, without making a takeover bid in accordance with the relevant provisions of Chapter 6 of the Act.
In support of that contention, the plaintiffs rely on the affidavit of Michael Goldhirsch sworn 23 September 2002. Mr Goldhirsch there deposes to information received from various shareholders of both companies, to the effect that Mr Cellante contacted them and offered to purchase, or expressed interest in purchasing, their shares. The plaintiffs allege that the total percentage of shares the subject of such contacts was approximately 52.51% in relation to Eromanga and 33.14% in relation to Bisan. The plaintiffs further emphasise Mr Cellante’s use of an alias and past transactions as indicators of impropriety.
In his affidavit sworn 2 October 2002, Mr Cellante does not deny the contacts (save for that to Noble Investments, relating to 7.77% of Bisan’s issued shares) but disputes aspects of Mr Goldhirsch’s account.
Section 606(4) of the Act precludes not only offers, but invitations which would cause a contravention if they provoked an offer which was accepted.
In order to contravene s.606(1) or (2), offers or invitations must, in aggregate, relate to shares which exceed the prohibited threshold of (in this case) more than 20%.
In my opinion, the material before me does not provide sufficient evidence of a contravention of Chapter 6 or other provisions to enable me to conclude that there is a serious question to be tried.
In the case of Bisan, the material indicates that contact was made with Rosenberg and an offer made on 6 August 2002 and refused on 7 August 2002 (according to the Goldhirsch affidavit). According to Cellante an offer was made and refused on about 2 August 2002. The offer to Beneficial Insurance Co Ltd was made on an unspecified date and refused on 31 July 2002, the offer to T & Z Import Export Co Pty Ltd was made and refused on an unspecified date or dates, the offer to Maryton Australia Pty Ltd was made and declined on 7 August 2002, the alleged offer to Noble Investments Pty Ltd is denied by Mr Cellante, the offer to Sixteenth Sokna Pty Ltd was made and declined on an unspecified date in late July and the offer to Berhel was made and accepted by Ms Buccheri on 4 August 2002 when Cellante and Jimenez acquired an equitable interest in the Berhel holding.
In the case of Eromanga, the offer to Corectime Pty Ltd was made on 16 July 2002 and declined on an unspecified date, the offer to Tivmoss Pty Ltd was made on 8 August 2002 and apparently remained on foot, the offer to Rayburn Pty Ltd was, according to Mr Goldhirsch’s affidavit, made on 2 August 2002, but according to Mr Cellante made and declined on 7 August 2002 and the offer to Elken Tower Pty Ltd was made on 6 September 2002 and terminated on the same day. (The discussion in paragraphs 72 and 73 uses the term “offer” to cover contacts and invitations.)
Even if the evidence of contravention of Chapter 6 were stronger, in my opinion the plaintiffs would still encounter difficulty in establishing that the meetings were convened for an improper purpose.
The purpose relevant to s.249Q of the Act would appear to be that of the convening shareholders. Mr Cellante has acted in relation to calling the s.249F meetings in his capacity as attorney for the nominated shareholders of each company. The evidence before me does not indicate that the purpose of the convening shareholders (save for Berhel) is other than the purpose stated in the Notices. That purpose is a proper purpose.
Further, if the purpose of Messrs Cellante and Jimenez were identifiable with the purpose of the convening shareholders, and that purpose were to secure their appointment to the boards of the relevant companies, I am unable to conclude that it constitutes, in the circumstances, an unlawful or otherwise improper purpose. The acquisition of the control entailed by appointment to the board of a company is not prohibited or regulated by Chapter 6 of the Act. Chapter 6 is aimed at the acquisition of voting power.
Conclusion
In all of these circumstances, I do not consider it an appropriate exercise of my discretion to make the further orders requiring Messrs Cellante and Jimenez to disclose their interest in the shareholdings of the relevant companies or restraining them from making further acquisitions, offers or invitations. I note that any acquisitions, offers or invitations must, of course, comply with the requirements of Chapter 6 of the Act.
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