Daemar v Corporate Affairs Commission Corporate Affairs Commission v Daemar

The case of *Daemar v Corporate Affairs Commission* and *Corporate Affairs Commission v Daemar* [1990] NSWCA 51 was heard by the New South Wales Court of Appeal. The dispute concerned the proper interpretation and application of provisions within the Companies (Acquisition of Shares) Act 1980 (NSW) (the Act) relating to the acquisition of shares and the powers of the Corporate Affairs Commission (CAC). Specifically, the proceedings involved an application by Mr. Daemar seeking relief from the CAC and a cross-appeal by the CAC.

The central legal issues before the Court of Appeal were whether the CAC had the power to issue a notice under section 11(1) of the Act requiring a person to furnish information, and if so, whether the notice issued to Mr. Daemar was valid. Further, the Court had to consider whether the CAC had the power to apply for an order under section 13(1) of the Act to restrain Mr. Daemar from acquiring further shares, and if such an order was justified. The Court also examined the scope of the court's discretion under section 13(1) when considering an application for an interim order.

The Court of Appeal held that the CAC did possess the power to issue a notice under section 11(1) of the Act, and that the notice served on Mr. Daemar was validly issued. Regarding the application for an interim order under section 13(1), the Court found that the CAC had not established a sufficient prima facie case to warrant such an order. The Court emphasised that an application for an interim order under section 13(1) requires the CAC to demonstrate a serious question to be tried and that the balance of convenience favoured the granting of the order, which it had failed to do in this instance.

Consequently, the Court of Appeal dismissed the CAC's appeal and upheld the primary judge's decision to refuse the interim order. Mr. Daemar's appeal was allowed to the extent that the CAC's application for an interim order was dismissed.