Coopers Brewery Ltd (ACN 007 871 409) - [2005] FCA 1426

FEDERAL COURT OF AUSTRALIA
Lion Nathan Australia Pty Ltd (ACN 008 596 370) v
Coopers Brewery Ltd (ACN 007 871 409) [2005] FCA 1426
INTERLOCUTORY APPLICATION – application for injunction to restrain meeting of shareholders – notice of meeting and explanatory memorandum – proposed resolution to amend memorandum and articles of association – takeover offer – pre-emptive rights for share transfer – whether explanatory memorandum a full and fair disclosure of the matters a shareholder should consider in voting on the resolution – whether shareholders should receive a target’s statement before voting on the resolution
INTERLOCUTORY APPLICATION – application for injunction to restrain meeting of shareholders – whether the plaintiff a member’s relative – whether the plaintiff entitled to be registered as a shareholder
Corporations Act 2001 (Cth): ss 140(2), 638(1), 1041H(1)
Trade Practices Act 1974 (Cth): s 52
Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457, followed
Bulfin v Bebarfald’s Ltd (1938) 38 SR (NSW) 423, followed
Chequepoint Securities Ltd v Claremont Petroleum NL (1986) 11 ACLR 94, followed
Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (1985) 9 ACLR 956, cited
Fraser v NRMA Holdings Limited (1994) 52 FCR 1, followed
Fraser v NRMA Holdings Limited (1995) 55 FCR 452, followed
Gambotto v WCP Limited (1995) 182 CLR 432, applied
LION NATHAN AUSTRALIA PTY LTD (ACN 008 596 370) v COOPERS BREWERY LTD (ACN 007 871 409), GLENN ANDREW COOPER, DAVID RONALD KINGSTON, WILLIAM THOMAS COOPER, TIMOTHY JAMES COOPER, CAMERON JOHN PEARCE and JAMES McANDREW COOPER
VID 1196 of 2005
ACN 116 149 092 PTY LTD v COOPERS BREWERY LTD (ACN 007 871 409)
VID 1195 of 2005
GOLDBERG J
11 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1196 of 2005

BETWEEN:

LION NATHAN AUSTRALIA PTY LTD
(ACN 008 596 370)
Plaintiff

AND:

COOPERS BREWERY LTD
(ACN 007 871 409)
First Defendant

GLENN ANDREW COOPER
Second Defendant

DAVID RONALD KINGSTON
Third Defendant

WILLIAM THOMAS COOPER
Fourth Defendant

TIMOTHY JAMES COOPER
Fifth Defendant

CAMERON JOHN PEARCE
Sixth Defendant

JAMES McANDREW COOPER
Seventh Defendant

JUDGE:

GOLDBERG J

DATE OF ORDER:

11 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
UPON the plaintiff by its counsel undertaking:
(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order hereby made or any continuation (with or without variation) thereof; and

(b) to pay the compensation referred to in (a) to the person there referred to.

1.The defendants be restrained from proceeding further with the conduct of the general meeting of shareholders, convened by notice dated 21 September 2005, proposed to be held on 20 October 2005 (other than to adjourn it to a date and time to be notified to shareholders at the time of such adjournment)…

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: [2005] FCA 1426
Decision Date: 11 OCTOBER 2005

CaseChat Overview and Summary

Coopers Brewery Ltd sought an injunction against the other defendants to prevent them from proceeding with an Extraordinary General Meeting of shareholders. The meeting was convened by notice dated 21 September 2005, and was proposed to be held on 20 October 2005. The plaintiff claimed that the meeting was improperly convened and that the proposed resolution was invalid. The defendants sought to have the application for interlocutory relief dismissed.

The court had to decide whether to grant an injunction to prevent the meeting from proceeding, and if so, under what conditions. The court also had to consider the appropriate compensation to be paid by the plaintiff to any person adversely affected by the operation of the interlocutory order. Additionally, the court had to decide whether to require the defendants to keep a record of the votes cast at the meeting and make it available for inspection by the plaintiff and its solicitors.

The court found that the meeting was properly convened and the proposed resolution was valid. Therefore, the application for interlocutory relief was refused. The court also found that the defendants were not required to keep a record of the votes cast at the meeting and make it available for inspection. However, the court ordered the plaintiff to undertake to pay compensation to any person adversely affected by the operation of the interlocutory order, and to pay the compensation to the person referred to. The costs of the application for interlocutory relief were reserved for further consideration.

The court made an order that the defendants be restrained from proceeding further with the conduct of the general meeting of shareholders, convened by notice dated 21 September 2005, proposed to be held on 20 October 2005, until further order. Liberty was reserved to the defendants on 24 hours’ notice in writing to apply to vary or discharge the order. The court also made an order that the application for interlocutory relief be refused and that the costs of the application for interlocutory relief be reserved for further consideration.

Orders

Orders of the court

UPON the plaintiff by its counsel undertaking:

(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order hereby made or any continuation (with or without variation) thereof; and

(b) to pay the compensation referred to in (a) to the person there referred to.

1. The defendants be restrained from proceeding further with the conduct of the general meeting of shareholders, convened by notice dated 21 September 2005, proposed to be held on 20 October 2005 (other than to adjourn it to a date and time to be notified to shareholders at the time of such adjournment) until further order.

2. Liberty is reserved to the defendants on 24 hours’ notice in writing to apply to vary or discharge the order in paragraph 1.

3. The costs of the application for interlocutory relief be reserved for further consideration.

UPON the defendant by its counsel undertaking to keep a record in writing, certified by the chairman of the meeting, of the number of the total number of votes cast in person or by proxy at the Extraordinary General Meeting of shareholders proposed to be held on 20 October 2005 and of the number of votes cast for and against the proposed resolution and to make such record in writing available for inspection by the plaintiff and its solicitors.

1. The application for interlocutory relief be refused.

2. The costs of the application for interlocutory relief be reserved for further consideration.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J

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Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1196 of 2005

BETWEEN:	LION NATHAN AUSTRALIA PTY LTD (ACN 008 596 370) Plaintiff
AND:	COOPERS BREWERY LTD (ACN 007 871 409) First Defendant GLENN ANDREW COOPER Second Defendant DAVID RONALD KINGSTON Third Defendant WILLIAM THOMAS COOPER Fourth Defendant TIMOTHY JAMES COOPER Fifth Defendant CAMERON JOHN PEARCE Sixth Defendant JAMES McANDREW COOPER Seventh Defendant
JUDGE:	GOLDBERG J
DATE OF ORDER:	11 OCTOBER 2005
WHERE MADE:	MELBOURNE