Premier Pacific Pharmaceutical Industries Ltd v Australian Stock Exchange

[1995] FCA 388

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG3147   of  1995
  )
GENERAL DIVISION                 )

BETWEEN:PREMIER PACIFIC PHARMACEUTICAL INDUSTRIES LIMITED

Applicant

AND:AUSTRALIAN STOCK EXCHANGE

Respondent

28 April 1995

REASONS FOR JUDGMENT
LOCKHART J.
     I gave judgment in this matter yesterday, but there was outstanding the principal question of the form of an undertaking to be given by the second respondent and the question whether an undertaking would be given by its subsidiary ABN Amro Australia Limited.  Instructions have been obtained from the second respondent by their solicitors and there has been discussion between counsel and solicitors as to the appropriate form of the undertaking. 

Essentially what I said yesterday in my judgment was that the relevant provisions of the Corporations Law are designed to ensure, in circumstances such as have arisen in this case, that subscription moneys paid by the second respondent, ABN Amro to the applicant, Premier Pacific Pharmaceutical Industries Limited, should be dealt with promptly by the making of the relevant issue of shares.  That has not occurred because of the currency of this litigation and in reality, what the dispute is about, is who should have the use of the substantial sum of money, namely, $40,000,000 in the meantime. I decided yesterday that the moneys should go back to ABN Amro, provided the appropriate undertakings are given by it and its subsidiary, to ensure that the moneys will go back again in the event of the appellant procedures of this Court and the High Court operating in favour of the applicant, Premier Pacific.

In my view, the appropriate undertaking which the Court should accept is that which is proffered by ABN Amro, and by ABN Amro Australia Limited.  Accordingly, upon the ABN Amro Bank NV and ABN Amro Australia Limited, by their counsel undertaking to the Court to pay to the applicant the sum of $35,370,000 together with interest thereon at 5.1 per cent per annum (or such other rate which would have been applied by the Hong Kong Bank of Australia Limited to the said sum if it had remained on deposit in the 24 hour call account where it is currently placed) calculated on a daily basis from the date after receipt of that sum from the applicant to the date prior to payment pursuant to this undertaking, within the time specified in paragraph (c) below, if:

(a) on the determination of the applicant's appeal from the judgment of Gummow J given in this Court on 19 April 1995, the applicant is granted final relief of the kind sought in paragraph (3) or paragraph (4) of the applicant's notice of appeal filed on 27 April 1995 in this Court, which relief is not subsequently set aside on any appeal to the High Court of Australia;  or

(b) of the determination of any appeal to the High Court of Australia, the applicant is granted final relief of the kind sought in paragraph (3) or paragraph (4) of the applicant's notice of appeal filed on 27 April 1995, and it is held that the applicant was not obliged pursuant to section 1031(2)(b)(ii) of the Corporations Law to repay the said moneys to the second respondent;

(c)  such amount to be payable either (1), within 21 business days after the delivery of judgment in the applicant's appeal in these proceedings, if no application for special leave to appeal therefrom to the High Court of Australia is filed within that time, or (2), within three business days after either (a), the refusal of any application for special leave to appeal from the judgment of the Full Court of this Court on the applicant's appeal;  or (b), if the application for special leave to appeal is granted, the delivery of judgment by the High Court of Australia on that appeal, the Court confirms the making of the orders to which reference was made in my judgment yesterday.  The court orders also that ABN Amro Australia Limited be added as the third respondent to the proceeding for the purpose of giving the requisite undertaking.
     In appeal 275 of 1995, the Court grants leave to appeal from the judgment of Gummow J of 19 April 1995 in matter G3147 of 1995 in so far as the same may be necessary.  Costs of the motion for leave to appeal to be costs in the appeal. 

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  28 April   1995

Counsel for the Applicants   :        Mr J Spigelman QC

Mr D Robinson

Solicitors for the Applicants     :        Strang & Chippendall

Counsel for the First Respondent  :    Mr B W Rayment QC

Mr R W White

Solicitors for the First Respondent: 

Counsel for the Second Respondent:        Mr M Pembroke

Solicitors for the Second Respondent: Mallesons Stephen Jaques

Date of Hearing             :        28 April 1995

Date of Judgment            :        28 April 1995