Cultus Petroleum v OMV Australia

Cultus Petroleum, as the bidder, brought proceedings against OMV Australia, the target company, concerning the disclosure of material information in the context of a takeover bid. The matter was heard in the Supreme Court of South Australia. The central issue was whether OMV Australia was required to disclose specific information to Cultus Petroleum that would have affected the latter's bid. The court had to determine whether the information was material, what constituted a material fact for disclosure purposes, and whether the disclosure was required by applicable law. Additionally, the court needed to decide whether an injunction should be granted to compel OMV Australia to disclose the information to Cultus Petroleum.

The court held that the information in question was material for disclosure purposes as it was necessary to prevent the disclosure from being misleading. The distinction between speculation and prediction was crucial, with the court noting that predictions must be substantiated to avoid being misleading. The court found that Cultus Petroleum was entitled to the information as it was necessary for the bid and the confidentiality obligations did not override the requirement for disclosure. The court also ruled that the exception under s750 cl 17 of the Corporations Law applied, as the information was required to be disclosed due to the bid. The court further determined that OMV Australia's agreement to accept the bid did not contravene s697 of the Corporations Law. Finally, the court examined the meaning of "benefit" and considered the discretionary factors in deciding whether to grant an injunction.

The court granted an injunction, requiring OMV Australia to disclose the information to Cultus Petroleum. The court found that the failure to disclose the information constituted a contravention of the continuous disclosure requirements under the ASX listing rules. The court emphasised the paramountcy of the disclosure obligations over any equitable obligations of confidentiality. The injunction was granted to prevent the shareholders from being deprived of the takeover offer. The court also noted that the lack of prompt action by OMV Australia was a relevant discretionary consideration in favour of granting the injunction. The final orders included the disclosure of the specified information by OMV Australia to Cultus Petroleum within a specified timeframe and the lifting of the confidentiality obligations to the extent necessary for the disclosure.