Limited v Harwood - [2006] FCA 717

FEDERAL COURT OF AUSTRALIA
Tower Software Engineering Pty Limited; Pendant Software Pty
Limited v Harwood [2006] FCA 717
CORPORATIONS – interlocutory application to restrain defendant from taking any further step in a proceeding/application in the Takeovers Panel – interlocutory application for orders to dismiss or stay court proceeding – pre-emptive rights regime under company constitution – takeover offer – whether it is within discretion of directors to refuse to register acceptance of shares for reason that may prevent a higher bid – where application made to Takeovers Panel – whether same substratum of facts before Takeovers Panel and the Court – whether declaration by the Takeovers Panel would render proceeding in Court nugatory – role of the Takeovers Panel under the Corporations Act
Corporations Act2001 (Cth): ss 657A, 659AA, 659B, 1071F
CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345, considered
National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209, considered
Sage v Australian Securities and Investments Commission [2005] FCA 1043, cited
Hammond v Commonwealth of Australia (1982) 152 CLR 188, considered
Glencore International AG v Takeovers Panel (2005) 220 ALR 495, applied
IN THE MATTER OF TOWER SOFTWARE ENGINEERING PTY LIMITED (ACN 008 602 739)
PENDANT SOFTWARE PTY LIMITED (ACN 117 040 525) v MARTIN HARWOOD & ORS
VID 496 of 2006
GOLDBERG J
6 JUNE 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 496 OF 2006

IN THE MATTER OF TOWER SOFTWARE ENGINEERING PTY LIMITED (ACN 008 602 739)

BETWEEN:

PENDANT SOFTWARE PTY LIMITED (ACN 117 040 525)
PLAINTIFF

AND:

MARTIN HARWOOD
FIRST DEFENDANT

BEREND HOFF
SECOND DEFENDANT

PETER JOHNSON
THIRD DEFENDANT

WILLIAM SCHOFIELD
FOURTH DEFENDANT

JAMES SERVICE
FIFTH DEFENDANT

JUDGE:

GOLDBERG J

DATE OF ORDER:

6 JUNE 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The plaintiff’s interlocutory process filed 2 June 2006 be dismissed.
2.   The plaintiff pay the second defendant’s costs of and incidental to the interlocutory process filed 2 June 2006.
3.   The first, fourth and fifth defendants’ notice of motion filed 5 June 2006 be dismissed.
4.   The costs of and incidental to the notice of motion filed 5 June 2006 be reserved for further consideration.
5.   Paragraphs 1 to 5 (inclusive) of the orders made on 24 May 2006 be vacated.
6.   The directions hearing be adjourned to a date to be fixed.
7.   There be liberty to apply on 24 hours’ notice.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 496 OF 2006

IN THE MATTER OF TOWER SOFTWARE ENGINEERING PTY LIMITED (ACN 008 602 739)

BETWEEN:

PENDANT SOFTWARE PTY LIMITED (ACN 117 040 525)
PLAINTIFF

AND:

MARTIN HARWOOD
FIRST DEFENDANT

BEREND HOFF
SECOND DEFENDANT

PETER JOHNSON
THIRD DEFENDANT

WILLIAM SCHOFIELD
FOURTH DEFENDANT

JAMES SERVICE
FIFTH DEFENDANT

JUDGE:

GOLDBERG J

DATE:

6 JUNE 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

There are two interlocutory applications before the Court. An interlocutory application on behalf of the plaintiff, Pendant Software Pty Limited (“Pendant Software”) for an…

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: [2006] FCA 717
Decision Date: 6 JUNE 2006

CaseChat Overview and Summary

Limited brought an application against Harwood and others, leading to a series of interlocutory applications and motions that were ultimately heard by the court. The plaintiff sought various orders, including an interlocutory process filed on 2 June 2006 and a notice of motion filed on 5 June 2006 by certain defendants. The legal issues revolved around the validity and appropriateness of the orders sought by the plaintiff and the defendants, as well as the costs associated with these applications.

The court examined the merits and procedural correctness of the plaintiff's interlocutory process and the defendants' notice of motion. It found that the plaintiff's interlocutory process was not justified and should be dismissed. The court also determined that the plaintiff should bear the costs of the interlocutory process filed on 2 June 2006. Regarding the notice of motion filed by certain defendants, the court dismissed it but reserved the decision on costs for further consideration. The court further vacated specific paragraphs of previous orders made on 24 May 2006 and adjourned the directions hearing.

The court’s final orders included dismissing the plaintiff’s interlocutory process and requiring the plaintiff to pay the second defendant’s costs. The notice of motion filed by certain defendants was dismissed, with costs to be determined later. Paragraphs 1 to 5 of earlier orders were vacated, and the directions hearing was adjourned with liberty to apply on short notice. This decision underscores the importance of careful consideration of interlocutory applications and the consequences of unsuccessful motions.

Orders

Orders of the court

1. The plaintiff’s interlocutory process filed 2 June 2006 be dismissed.

2. The plaintiff pay the second defendant’s costs of and incidental to the interlocutory process filed 2 June 2006.

3. The first, fourth and fifth defendants’ notice of motion filed 5 June 2006 be dismissed.

4. The costs of and incidental to the notice of motion filed 5 June 2006 be reserved for further consideration.

5. Paragraphs 1 to 5 (inclusive) of the orders made on 24 May 2006 be vacated.

6. The directions hearing be adjourned to a date to be fixed.

7. There be liberty to apply on 24 hours’ notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GOLDBERG J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 496 OF 2006

BETWEEN:	PENDANT SOFTWARE PTY LIMITED (ACN 117 040 525) PLAINTIFF
AND:	MARTIN HARWOOD FIRST DEFENDANT BEREND HOFF SECOND DEFENDANT PETER JOHNSON THIRD DEFENDANT WILLIAM SCHOFIELD FOURTH DEFENDANT JAMES SERVICE FIFTH DEFENDANT
JUDGE:	GOLDBERG J
DATE OF ORDER:	6 JUNE 2006
WHERE MADE:	MELBOURNE

JUDGE:	GOLDBERG J
DATE:	6 JUNE 2006
PLACE:	MELBOURNE