Keybridge Capital Ltd v WAM Active Ltd

Keybridge Capital Ltd (Keybridge) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning an off-market takeover bid made by WAM Active Ltd (WAM Active) for shares in Keybridge. The dispute centred on whether WAM Active had effectively freed its takeover offer from certain defeating conditions.

The Court was required to determine two principal legal issues. First, whether a notice given by WAM Active, declaring its offer free of conditions, was effective under section 650F of the *Corporations Act 2001* (Cth) when it was given within the seven-day period after the offer closed. Second, the Court had to consider whether a particular condition in the offer related to the happening of an event or circumstance as contemplated by section 652C(1) of the *Corporations Act 2001* (Cth).

The Court of Appeal held that the notice given by WAM Active was effective to free the offer from its defeating conditions. The Court reasoned that section 650F(1) permits a bidder to declare an offer free of a condition at any time during the offer period, and the notice was given within the statutory timeframe. Furthermore, the Court found that the condition in question did not fall within the scope of section 652C(1), as it did not relate to the happening of an event or circumstance in the manner described by that provision.

The appeal was dismissed.