Trade Practices Commission v Rank Commercial Ltd
[1994] FCA 443
•12 Jul 1994
443 9't
JUDGMENT No. ..,,. ,,, ....
IN TIIE FEDERAL COURT OF AUSTRALIA ) 1 NEW SOUTH WALES DISTRICT REGISTRY ) No. G 395 of 1994 1
GENERAL DIVISION 1
BETWEEN : TRADE PRACTICES COMMISSION
Applicant
AND RANK COMMERCIAL LIMITED First respondent COLES MYER LIMITED Second respondent GRAKAM RICHARD HART Third respondent AUSTRALIAN GROCERY HOLDINGS
PTY LIMITEDFourth respondent MILLSTREET INVESTMENTS
LIMITED13 JUL1994
FEDERAL COURT OF
-AUSTRALIA Fifth respondent PRINCIPAL REGISTRY HOTHFIELD HOLDINGS LIMITED
Sixth respondent
FOODLAND ASSOCIATED LIMITED
Seventh respondent
referred to in the reasons for judgment.
CORAM: Beaumont J. PLACE : SYDNEY (HEARD IN MELBOURNE) DATE : - 12 July 1994 MINUTES OF ORDER
THE COURT ORDERS:
1. Order that the fourth respondent be restrained, up to and including 12 September 1994, from lodging for registration under s.644 of the Corporations Law a Part A statement in respect of the proposed takeover offer
2. Order that, so far as concerns the respondents other than the seventh respondent, the applicant's costs of this motion be the applicant's costs in the principal proceeding.
3. Direct that:
(a)
The final hearing of the principal proceeding be fixed to commence on 29 July 1994 at 10.15 a.m.
(b)
The applicant and the seventh respondent file and serve by 20 July 1994 any witness statement upon which either of them seeks to rely.
(c)
The respondents, other than the seventh respondent, file and serve by 27 July 1994 any witness statement upon which any of them seeks to rely.
(d) Discovery be dispensed with.
(e)
The matter be listed before the trial Judge in Melbourne on 15 July at 9.30 a.m. for directions on the question of the venue for the final hearing.
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
| t | 1 |
NEW SOUTH WALES DISTRICT REGISTRY ) NO. G 395 of 1994
I.
GENERAL DIVISION
BETWEEN: TRADE PRACTICES COMMISSION
Applicant
AND RANK COMMERCIAL LIMITED First respondent COLES MYER LIMITED Second respondent GRAHAM RICHARD HART Third respondent AUSTRALIAN GROCERY HOLDINGS
PTY LIMITEDFourth respondent MILLSTREET INVESTMENTS
LIMITEDFifth respondent HOTHFIELD HOLDINGS LIMITED Sixth respondent FOODLAND ASSOCIATED LIMITED Seventh respondent
CORAM: Beaumont J .
DATE: 12 July 1994 REASONS FOR JUDGMENT ON MOTION FOR
INTERLOCUTORY RELIEF
INTRODUCTION
Before the Court is a motion for interim relief pending the final hearing of the principal proceeding, in which the applicant, the Trade Practices Commission ("the TPC") claims that, unless restrained by the Court, the first respondent, Rank Commercial Limited ("Rank"), the second respondent, Coles Myer Limited ("CML"), the third respondent, Graham Richard Hart, the fourth respondent, Australian Grocery Holdings Pty. Limited ("AGH"), and the sixth respondent, Hothfield Holdings Limited ("Hothfield"), will acquire shares in the capital, or assets of, the seventh respondent, Foodland Associated Limited ("FAL") and thereby contravene the provisions of s.50 of the Trade Practices Act ("the Act"). Section 50 prohibits an acquisition if it "would have the effect, or be likely to have the effect, of substantially lessening competition in a market". In the principal proceeding, the Commission seeks permanent injunctions restraining the respondents, other than FAL, from making these aquisitions. On the present notice of motion, the Commission seeks, on a temporary basis, that is, until the final determination of the principal proceeding, an injunction to restrain these acquisitions and, in particular, to restrain AGH from taking any step, including lodging a Part A statement
under the Coroorations Law ("the Law") with the Australian
Securities Commission ("the ASC"), with a view to making an
offer to acquire shares in the capital of FAL. THE RELATIONSHIPS BETWEEN THE RESPONDENTS Mr. Hart controls Rank. He also controls Hothfield, which controls Millstreet, which in turn controls AGH. Rank is the beneficial owner of 38,794 shares (i.e. 14.9%) in the capital of FAL. In June 1994, the respondents, other than FAL, entered into certain arrangements, in particular a Deed of Co-operation dated 23 June 1994 ("the Deed of Co- operation"), upon which the TPC places much reliance in the principal proceeding and for present purposes.
THE CASE PLEADED BY THE TPC IN THE PRINCIPAL PROCEEDING By its points of claim, the TPC makes, in essence,
these allegations:
(1) (a) FAL conducts business as a wholesale supplier of grocery products to independent grocery retailers being supermarkets, "top up" stores and "convenience" stores, throughout Western Australia ("W.A."). It also operates, through its subsidiary, Action Food Barns (W.A.) Pty. Limited ("Action"), several retail supermarkets in W.A.
(b) Market shares in the W.A. market for the acquisition
by wholesale of grocery products are: CML and FAL - 70%;
Woolworths Ltd. and others - 30%. (c) Market shares in the W.A. market for the sale by retail of grocery products are: CML - 23.5%; Woolworths - 25%; Action - 10%; other independent retailers who obtain wholesale supplies from FAL - 41.5%.
(2) Under the Deed of Co-operation, the following is provided:
(a) A subsidiary of Rank will make a Take-over Offer("the Offer") for the shares in FAL.
(b) AGH (in the Deed of Co-operation referred to as "Bidco") will acquire shares in FAL from those accepting the Offer and Rank will sell its shares in FAL to Bidco.
(c) After acquisition of the capital of FAL by Bidco, the business of FAL will be divided and its New Zealand operations divested, leaving its Australian operations as its main asset.
(d) Upon the Offer becoming unconditional, CKG is
granted:
(i) an option to purchase all the capital of Bidco for a nominal consideration;
(ii) the right to appoint a director to, and to obtain information in respect of the business
of, FAL;
(iii) certain (confidential) rights in the alternative to the exercise of the option rights in (i) above.
(e) Unless Rank and CML agree, Bidco must not, inter alia, vary or withdraw the Offer or acquire any FAL shares otherwise than pursuant to the Offer.
(3) CML has provided, and will provide, essential financial
assistance in respect of the carrying out of the provisions of
the Deed of Co-operation.(4) The acquisition of FAG shares by Rank or AGH pursuant to the Deed of Co-operation will be partly for themselves and partly for CML in that -
(i) the shares are to be held subject to CML's direction and are the subject of CML's option.
(ii)Rank and AGH are bound not to prejudice any prospective interest of CML in the FAL shares.
(5) If CML obtains control of FAL, or of Fa's W.A. operations, there is likely to be a substantial lessening of competition in the above retail market because, inter alia:
(a) CML will control about 75% of W.A. retail grocery sales;
(b) CML will directly control FAL retail outlets;(c) CML, although now a competitor in the retail market, will
also control supplies and services to its most significant competitors.
(6 If CML obtains control of FAL, or of Fa's W.A. operations, there is likely to be a substantial lessening of
competition in the above wholesale market because, inter alia:
(a) Suppliers will have no alternative but to deal with CML
and will have little ability to influence the terms of
trade.
(b)
There are already substantial barriers to entry into the wholesale market.
THE DEED OF CO-OPERATION
Many of the provisions of the Deed of Co-operation are adequately summarised for our purposes in the points of claim. But in order to understand the issues which arise on the present motion, it will also be necessary to refer to some of the terms of the Deed.
The recitals to the Deed state:
" D I f the O f f e r s a r e s u c c e s s f u l , i t i s proposed
t h a t B idco w i l l u s e i t s best endeavours t o
procure t h a t FAL either:
d i s t r i b u t e s o r o t h e r w i s e t r a n s f e r s t o i t s shareho lde r s on a pro r a t a b a s i s s h a r e s i n a company which owns the Core NZ Assets and Rank o r an ent i ty nominated by Rank w i l l purchase B idco ' s s h a r e s i n this
company.
o f f e r s i t s shareho lde r s the r i g h t on a pro
r a t a b a s i s t o s u b s c r i b e for or purchase
s h a r e s i n a company w h i c h owns the C o r e NZ
Assets and ~ a n k o r a person nominated by
Rank w i l l underwr i t e the i s s u e or s a l e o f
s h a r e s i n th is company.
E I t i s a l s o proposed t h a t :
I f the o f f e r s a r e s u c c e s s f u l , B idco w i l l c o n t i n u e t o own and c o n t r o l the FAL Group w h i l e C o l e s seeks t o o b t a i n a n y n e c e s s a r y approva l s t o a c q u i r e the ba lance o f the FAL Group.
C o l e s w i l l have an o p t i o n t o purchase a l l
o f the i s s u e d share s i n the c a p i t a l o f B idco i n accordance w i t h th i s document. "
The "nature o f the re lat ionship" under the Deed is
described i n these terms:
"2 NATURE OF RELATIONSHIP
The p a r t i e s have e n t e r e d i n t o t h i s document for the purpose o f :
( a ) f a c i l i t a t i n g the O f f e r s ;
(b) e n a b l i n g Bidco t o own and control the PAL Group;
(c) p r o v i d i n g Rank o r a n ent i ty nominated by
Rank w i t h the o p p o r t u n i t y t o purchase some
o r a l l o f the s h a r e s i n a company which
owns the Core NZ A s s e t s ; and
( d ) p r o v i d i n g C o l e s w i t h an o p p o r t u n i t y t o
a p p l y for and o b t a i n a n y n e c e s s a r y A u t h o r i s a t i o n s t o a c q u i r e the ba lance o f the FAL Group.
2.2 C o l e s ' S tandby Commitment
Coles ' h a s agreed t o p rov ide a s t a n d b y
commitment i n r e s p e c t o f c e r t a i n f i n a n c i a l
accommodation t o be provided t o B idco or Bidco
Holdings t o fund the O f f e r s and c e r t a i n o f
Bidco or Bidco Holdings ' h o l d i n g c o s t s .
2 . 3 Nature o f Controls
In o r d e r t o p r o t e c t :
( a ) Coles ' exposure to loss i n r e s p e c t o f i t s
s t a n d b y commitment; and
(b) Coles ' p r o s p e c t i v e i n t e r e s t i n Bidco under
the Co le s Opt ion ,
the p a r t i e s have agreed t h a t Co l e s may impose c e r t a i n r e s t r i c t i o n s on Bidco i n accordance w i t h t h i s document. These c o n t r o l s a r e i n t e n d e d t o p r o t e c t C o l e s from a n y d i s s i p a t i o n
i n the v a l u e o f B idco or the FAL Group.
Noth ing i n this document shou ld be cons t rued a s
g i v i n g C o l e s a n y c o n t r o l o r s i g n i f i c a n t
i n f l u e n c e o v e r the conduc t o f a n y o f the t r a d i n g o p e r a t i o n s o f the FAL Group p r i o r t o
exercise o f the C o l e s Option." Cm's option is dealt with in c1.6 of the Deed.
Clause 6.8 and 6.9 provide:
"6.8 E a r l y Exercise
S u b j e c t t o c l a u s e 6.2, a s soon a s p r a c t i c a b l e
a f t e r it o b t a i n s a l l r e q u i r e d A u t h o r i s a t i o n s ,
C o l e s s h a l l exercise the C o l e s Opt ion. C o l e s
w i l l u s e i t s r easonab l e endeavours t o o b t a i n a l l r e q u i r e d A u t h o r i s a t i o n s a t the e a r l i e s t
p r a c t i c a b l e d a t e b u t n o t h i n g i n this c l a u s e 6.8 or i n c l a u s e s 3.7, 5.10 or 6.9 s h a l l o b l i g e C o l e s t o agree t o a n y c o n d i t i o n s imposed i n r e l a t i o n t o a n y A u t h o r i s a t i o n or t o g i v e a n y u n d e r t a k i n g o r commitment o f a n y k i n d t o a n y Government Agency.
6.9 A u t h o r i s a t i o n s
Each o f the p a r t i e s s h a l l u s e i t s best
e n d e a v o u r s t o o b t a i n a l l n e c e s s a r y
A u t h o r i s a t i o n s i n r e l a t i o n t o the t r a n s a c t i o n s
contemplated by this c l a u s e 6 . Each o f the
p a r t i e s s h a l l co-operate f u l l y w i t h the o t h e r s
i n t h i s regard and s h a l l p rov ide each o f the
o t h e r s w i t h d r a f t s o f a n y proposed submi s s ions
t o a Government Agency i n r e s p e c t o f a n y
r e q u i r e d A u t h o r i s a t i o n s and u s e i t s best
endeavours t o agree t o the t e rms o f the
submiss ion w i t h each other p a r t y . However, f o r
the avoidance o f doub t , C o l e s s h a l l have s o l e
r e s p o n s i b i l i t y f o r a n y d e a l i n g s w i t h the Trade
P r a c t i c e s Commission i n A u s t r a l i a . "
UNDERTAKINGS TO THE COURT OFFERED BY THE RESPONDENTS OTHER
THAN FAL
On behalf of the respondents other than FAL, it is submitted that, in considering whether, on the balance of convenience, the making of the take-over offer should be restrained pending
a final hearing, the Court should take into account the following undertakings. They say that, even if the bid now proceeds, these undertakings, which, if accepted by the Court, are to remain in place until a final determination of the principal proceeding, will be effective to hold the status quo in other respects. Specifically, they say that the effect of the undertakings will be to ensure that no contravention of s.50 of the Act can be permitted to occur before that final determination.
(a) The undertakings offered bv Rank, Mr. Hart, AGH. Millstreek and Hothfield These respondents offer the following undertakings:
" (a) they will notify the Applicant imedia tely upon receipt from the Second Respondent ('CML') of a
notice of:(i) exercise of any rights arising under
Clause 6.1 of the Co-operation Deed . . .
[By cl. 6.1, CML's Option is granted]
(ii)exercise of any rights arising under Clause 6.7 of the Co-operation Deed;
[Cl. 6.7 is confidential: if. is not necessary to refer to it for present purposes]
(iii)acceptance by CML of any offer made pursuant to Clause 6.4 of the Co-operation Deed; or
[Cl. 6.4 is confidential: it is not necessary
to refer to it for present purposes](iv)nomination by CML of a person to be a member of the Board of Directors of the Fourth Respondent ('AGH') pursuant to Clause 7.1 of the Co-operation Deed;
(b) they w i l l n o t , w i t h o u t g i v i n g 30 days p r i o r
w r i t t e n n o t i c e t o the A p p l i c a n t , e x c e p t by
v i r t u e o f b e i n g a p a r t y t o the Co-operation
Deed w i t h CML, sel l , o r o f f e r t o sel l , d i r e c t l y
or i n d i r e c t l y , a n y l e g a l or e q u i t a b l e interest
i n the s h a r e s o r a s s e t s o f the Sixth Respondent ( 'FAG') t o CML;
( c ) a c t a t the d i r e c t i o n o f CML i n r e l a t i o n t o the
conduct o f the b u s i n e s s o f FAL;
( d ) they w i l l not p rov ide t o CML, whether i n
accordance w i t h C lause s 4 .3 , 6.5 o r 10.3 o f the
Co-operation Deed o r o t h e r w i s e , a n y i n f o r m a t i o n
i n the p o s s e s s i o n o f FAL w i t h i n the f o l l o w i n g c a t e g o r i e s :
* FAL' s t r a d i n g t erms w i t h i t s s u p p l i e r s ;
* FAL's t r a d i n g t erms w i t h i t s cus tomers ;
* the i d e n t i t y o f F a ' s s u p p l i e r s and cus tomers ;
* t r a d i n g and f i n a n c i a l i n f o r m a t i o n r e l a t i n g
t o FAG'S cus tomers ;
* FAL's m a r k e t i n g and a d v e r t i s i n g s t r a t e g i e s ;
* FAL' s p lans r e l a t i n g t o p r o p e r t y
development and s i te p lann ing for r e t a i l sites; and
( e ) they w i l l n o t rely a t the t r i a l o f the c u r r e n t
proceed ings a s a ground f o r the re l ie f sought
by the App l i can t n o t b e i n g gran ted , the f a c t
t h a t either:
(i) the proposed t a k e o v e r o f f e r by AGH for a l l
o f the i s s u e d share s i n FAL h a s proceeded pursuant t o c l a u s e 3 o f the Co-operation
Deed; o r
(ii) the Core NZ Assets ( a s d e f i n e d i n the Co-
o p e r a t i o n Deed) have been d e a l t w i t h i n accordance w i t h c l a u s e 5 o f the Co-
o p e r a t i o n Deed. "
(b) The undertakinqs o f fered bv CML
CML has of fered these undertakings which are
intended t o reciprocate those tendered by the "Hart"
respondents:
l.
it will not without giving 30 days prior written notice t o the Applicant:
( a )
exercise any o f i t s r ights arising under Clause 6.1 o f the Co-operation Deed ...
(b)
exercise any of its rights arising under Clause 6.7 o f the Co-operation deed;
( c ) accept any o f f e r made pursuant t o Clause
6 .4 o f the Co-operation Deed;
( d ) i n exercising i t s r ights under Clause 7.1 o f the Co-operation Deed, appoint any o f f i c e r or employee o f CML or any o f i t s related corporations t o the Board o f Directors o f the Fourth Respondent
( 'AGH' ) ; (e) except by virtue of being a party to the
Co-operation Deed, acquire or o f f e r t o acquire, d irect ly or indirect ly , any legal or equitable interest i n the shares or
assets o f the Sixth Respondent ('FAL') including (without l imitation) exercising any rights t o acquire any security held by lenders t o any o f the H a r t Respondents
over any shares or assets o f FAL; ( f ) seek t o direct any o f the H a r t Respondents i n relation t o the conduct o f the business
o f FAL; and (g) request or seek to obtain from either:
(i) any of the Hart Respondents or any
o f f i c e r or employee o f the Hart Respondents i n exercise o f CML's r ights under Clauses 4.3, 6.5 or 10.3
o f the Co-operation Deed or otherwise; or
(ii) any person nominated by CML t o the
Board o f Directors o f AGH under
Clause 7 .1 o f the Co-operation Deed,
i n f o r m a t i o n i n the p o s s e s s i o n o f FAL
w i t h i n the f o l l o w i n g c a t e g o r i e s :
F a ' s t r a d i n g t erms w i t h i t s s u p p l i e r s ;
* FAL' s t r a d i n g t erms w i t h i t s
cus tomers ;
* the i d e n t i t y o f FAL's s u p p l i e r s and
cus tomers ;
* t r a d i n g and f i n a n c i a l i n f o r m a t i o n r e l a t i n g t o FALfs cus tomers ;
* PAL'S m a r k e t i n g and a d v e r t i s i n g
s t r a t e g i e s ;
* FAL' s p lans r e l a t i n g t o p r o p e r t y
development and s i te p lann ing for r e t a i l sites;
2. i t w i l l n o t rely a t the t r i a l o f the c u r r e n t
proceed ings a s a ground for the re l ie f sought
by the A p p l i c a n t not b e i n g granted, the f a c t t h a t either:
( a ) the proposed t a k e o v e r o f f e r by AGH f o r a l l
o f the i s s u e d s h a r e s i n FAL h a s proceeded
pursuant t o c l a u s e 3 o f the Co-operat ion Deed; or
(b) the C o r e NZ A s s e t s ( a s d e f i n e d i n the Co-
o p e r a t i o n Deed) have been d e a l t w i t h i n accordance w i t h c l a u s e 5 o f the Co-
o p e r a t i o n Deed. "
CONCLUSIONS (a) Statement of conclusion
I have come to the conclusion that a temporary injunction, limited so as to expire in two months, should be granted to restrain the making of the bid in that period. In my view, the matter should proceed to a final hearing as soon as is practicable, with a view to its expeditious disposition within two months. I propose to give directions accordingly.
There is no reason, in my opinion, provided discovery is dispensed with, why the matter cannot be finally disposed of within two months with proper case management. In my view, the urgency of the matter, coupled with the amount of relevant information already in the possession or power of the TPC, justifies the extraordinary course of dispensing with discovery, bearing in mind also that current industry statistics appear to be readily available and that the parties have already exchanged, and will, I expect, further exchange, substantial witness statements, including expert reports.
(b) Reasons for conclusion
Although the Court's discretion to grant an interim injunction is a wide one, and notwithstanding that, in exceptional circumstances, regard may be had to the apparent strength of an applicant's case at a final hearing, it is preferable, in the circumstances of the present matter, given its apparent complexity and the way in which CML has already
vigorously disputed much of the TPC evidence (even its expert evidence) to proceed to consider the present application by the conventional two-stage process and thus next to address these questions: (1) Is there a serious question to be tried at the final hearing on the substantive (s.50) point? (2) Where does the balance of convenience lie?
(i)
Is there a serious question to be tried at the final hearing?
In my opinion, the TPC has established that such a
question exists.
In the first place, CML acknowledges, correctly in my view, that any acquisition by it of shares in, or assets of, FAL raises a question, seriously, whether s.50 would thereby be contravened.
So far as concerns the "Hart" respondents, the position is said to be different. On their behalf, it is contended that the TPC case against them at a final hearing is entirely without prospect of success so that no serious question arises, they say, of the grant of final relief against them.
I cannot accept this contention.
It is true that, in the ultimate analysis, the interests of the "Hart" respondents lie in the acquisition of FAL's New Zealand assets, and that if this were all that were lnvolved in the subject transaction, the matter may have been beyond the territorial reach of the Act. But, of course, much more is involved here than this. As the public announcements by the parties have emphasised, and as the terms and description of the Deed of Co-operation confirm, the relationship between CML and the "Hart" respondents in the subject transaction is that of joint venturers. (Whether there are other relationships, e.g. agency, trust, need not now be considered.) Given the existence of this joint venture, it is difficult for the "Hart" respondents now to dispute that a serious question arises whether, at a final hearing, they should be held to be parties to a contravention of s.50 in the event that CML were to acquire shares in, or assets of, FAL. Whether the "Hart" respondents would be liable primarily, or secondarily as a party "involved", is not necessary to decide here. It suffices to say that, given the
| .I | existence of the joint venture and the interdependence, legally, commercially and financially, of all aspects of the performance of the terms and conditions of the Deed of Co- operation, in my opinion, any acquisition by CML in the manner contemplated by the Deed raises a serious question as to the liability of the "Hart" respondents to be enjoined at a final hearing from further exercising their rights, and performing their obligations, under the Deed. | ||
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| (b) The balance of convenience | |||
| I have found this the more difficult aspect of the present motion, especially having regard to the circumstance that, by reason of the provisions of s .80(6) of the Act that where the Minister, or the TPC, applies for an injunction under s.80(6), the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking to pay damages, if, for | |||
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| I also take into account, in favour of CML and the "Hart" respondents, the circumstances (1) that, as has been seen, the Deed of Co-operation contemplates that any acquisition by CML would be subject to TPC authorisation and (2) that, apart from the bid itself, the undertakings now | |||
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| In my opinion, if the bid were to be disregarded for the moment, there would have been substantial force in the contention that the Court should now accept the undertakings. But, the bid cannot, I believe, be disregarded for present purposes: it is central to the performance of the joint venture. In my view, complications are likely to arise from the making of the bid at this stage and that likelihood is a significant matter to be taken into account in assessing the balance of convenience. It is to be borne in mind in this connection that the shares in FAL are reasonably widely held, so that undesirable complications arising in a bid now proceeding could impact adversely upon a significant section of the public. Their interests, in my view, should be accorded substantial weight in judging where the balance of convenience presently lies. | |||
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| aware of these plans in all of their well publicised dimensions. If the bid is now to proceed upon the footing that, instead of restraining the bid, the Court accepts the undertakings, the bidder would face the following dilemma: On the one hand, it may mislead shareholders by its silence if it says nothing about the undertakings and this litigation, including the possibility of an application by the TPC for divestiture orders. On the other hand, if shareholders are to be told about such matters, then given the interdependence of all aspects of the provisions of the joint venture, uncertainty could be created in the minds of shareholders as to the outcome of the bid, in terms of a perception that its outcome may in some way depend upon the final result of this litigation. Such uncertainty could not assist in the creation of a well informed market. | |||
| In my view, such complications should, and can, be avoided here. As I have already said, since the final hearing of the matter is urgent, the case should be accorded the priority usually given to litigation in a take-over context, that is, to direct that all steps be taken to bring about a final determination by the Court within, say, two months. A resolution of this kind sf dispute in this time frame would, I believe, be reasonable, in terms of timing, from the standpoint of all concerned. On the one hand, it would not | |||
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| uncertainty or confusion in shareholders' minds should by then have been removed. At the same time, all of the parties have at their disposal the resources capable of preparing and conducting litigation of this kind urgently. | |||
| ORDERS | |||
| In these circumstances, I propose to order that AGH be restrained from lodging its Part A statement for a period of two months, that is, up to and including 12 September 1994. | |||
| As to costs, since the TPC has had a substantial measure of success in this motion, its costs of the motion will, so far as concerns respondents other than F=, be the TPC'S costs in the principal proceeding. FAL supported the TPC in the motion, and no order in respect of the costs of the motion should be made either for or against FAL. |
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont.
Dated: 12 July 1994 /
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