NCFS Properties P/L v Hawkins

The case involved NCFS Properties P/L as the applicant and Hawkins as the respondent. The nature of the dispute centred around the interpretation and application of section 459G of the Corporations Act. The matter was heard in the Federal Court of Australia. The applicant sought to enforce a right of pre-emption in relation to certain shares in a company. The legal issue before the court was whether the statutory period within which the respondent was required to exercise their pre-emptive rights was to be measured by reference to section 105 of the Corporations Law, which deals with the calculation of time in legal proceedings.

The court examined the relevant statutory provisions and the context in which they were to be applied. It found that section 459G(3) provided that the respondent had 21 days from the date of the applicant's written offer to exercise their pre-emptive rights. The court held that the 21-day period was not to be extended by reference to section 105, which deals with the calculation of time in legal proceedings. Instead, the 21-day period was to be calculated by reference to the ordinary rules of calendar time. This interpretation was consistent with the purpose of section 459G, which was to provide a clear and certain period within which the respondent could exercise their pre-emptive rights. The court further held that the 21-day period was not to be extended by any exclusion periods or weekends.

The court ultimately found in favour of the applicant, holding that the respondent had failed to exercise their pre-emptive rights within the required 21-day period. The court ordered that the respondent's pre-emptive rights were accordingly forfeited, and that the applicant was entitled to enforce the right of pre-emption in relation to the relevant shares. The court also made orders for costs in favour of the applicant.