Troy Resources Nl v Taipan Resources Nl
[2000] WASC 279
•17 NOVEMBER 2000
TROY RESOURCES NL -v- TAIPAN RESOURCES NL [2000] WASC 279
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 279 | |
| Case No: | COR:265/2000 | 10 OCTOBER 2000 | |
| Coram: | SCOTT J | 17/11/00 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application referred to the Corporations & Securities Panel in COR 265 of 2000 Application dismissed in COR 266 of 2000 | ||
| PDF Version |
| Parties: | TROY RESOURCES NL (ACN 006 243 750) TAIPAN RESOURCES NL (ACN 060 156 452) ROBERT JOHN CHARLES CATTO BATOKA PTY LTD (ACN 002 904 930) |
Catchwords: | Corporations Injunction Takeover offers Misleading and deceptive conduct in relation to merger proposal Counter proposal for takeover conditional upon merger failing Corporations & Securities Panel Jurisdiction Where takeover offer proposed but not yet made |
Legislation: | Australian Securities & Investments Commission Act 1989, Part 10, s 171, s 174 Corporations Law, s 657A(1), s 657A(2), s 659A, s 659B(4), s 995(2) |
Case References: | Acacia Resources Ltd v Delta Gold (1999) ACSR 144 Acacia v Delta Gold (1999) ACSR 144 Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 Port of Melbourne Authority v Anshun Pty Ltd (1980-81) 147 CLR 589 S & O Nominees Pty Ltd & Ors v Taipan Resources NL [2000] WASC 270 Siddons Pty Ltd v The Stanley Works Pty Ltd (1991) 29 FCR 14 Chequepoint Securities Ltd v Claremont Petroleum NL (1986) 1 ACLR 94 Cleary v Australian Cooperative Foods Ltd (1999) 32 ACSR 701 Fraser v NRMA (1994) 14 ACSR 656 Morey v Transurban City Link Ltd (1997) ATPR 41 Peters' American Delicacy Co Ltd v Heath (1939) 61 CLR 456 Primac Holdings Ltd v IAMA Ltd (1996) 22 ACSR 454 Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Section 1324 of the Corporations Law
BETWEEN : TROY RESOURCES NL (ACN 006 243 750)
- Applicant
AND
TAIPAN RESOURCES NL (ACN 060 156 452)
Respondent
- BATOKA PTY LTD (ACN 002 904 930)
Applicants (Plaintiffs)
AND
TAIPAN RESOURCES NL (ACN 060 156 452)
- Respondent (Defendant)
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Catchwords:
Corporations - Injunction - Takeover offers - Misleading and deceptive conduct in relation to merger proposal - Counter proposal for takeover conditional upon merger failing - Corporations & Securities Panel - Jurisdiction - Where takeover offer proposed but not yet made
Legislation:
Australian Securities & Investments Commission Act 1989, Part 10, s 171, s 174
Corporations Law, s 657A(1), s 657A(2), s 659A, s 659B(4), s 995(2)
Result:
Application referred to the Corporations & Securities Panel in COR 265 of 2000
Application dismissed in COR 266 of 2000
Representation:
COR 265 of 2000
Counsel:
Applicant : Mr M L Bennett
Respondent : Mr J Gilmour QC & Mr M D Howard
Amicus Curiae : (Australian Securities & Investments Commission) Mr M J Gething
Amicus Curiae : (St Barbara Mines Ltd) Mr J A Chaney
Amicus Curiae : (Corporations & Securities Panel) Mr A L Kuhn
Solicitors:
Applicant : Bennett & Co
Respondent : Clayton Utz
Amicus Curiae : Australian Securities & Investments Commission
Amicus Curiae : Minter Ellison
Amicus Curiae : Arthur Robinson & Hadderwicks
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COR 266 of 2000
Counsel:
Applicants (Plaintiffs) : Mr M J Buss QC & Ms P E Cahill
Respondent (Defendant) : Mr J Gilmour QC & Mr M D Howard
Amicus Curiae : (Australian Securities & Investments Commission) Mr M J Gething
Amicus Curiae : (St Barbara Mines Ltd) Mr L D Ayres
Amicus Curiae : (Corporations & Securities Panel) Mr A L Kuhn
Solicitors:
Applicants (Plaintiffs) : Jackson McDonald
Respondent (Defendant) : Clayton Utz
Amicus Curiae : Australian Securities & Investments Commission
Amicus Curiae : Minter Ellison
Amicus Curiae : Corporations & Securities Panel
Case(s) referred to in judgment(s):
Acacia Resources Ltd v Delta Gold (1999) ACSR 144
Acacia v Delta Gold (1999) ACSR 144
Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Finucane v New South Wales Egg Corporation (1988) 80 ALR 486
Port of Melbourne Authority v Anshun Pty Ltd (1980-81) 147 CLR 589
S & O Nominees Pty Ltd & Ors v Taipan Resources NL [2000] WASC 270
Siddons Pty Ltd v The Stanley Works Pty Ltd (1991) 29 FCR 14
Case(s) also cited:
Chequepoint Securities Ltd v Claremont Petroleum NL (1986) 1 ACLR 94
Cleary v Australian Cooperative Foods Ltd (1999) 32 ACSR 701
Fraser v NRMA (1994) 14 ACSR 656
Fraser v NRMA (1994) 15 ACSR 656
Morey v Transurban City Link Ltd (1997) ATPR 41
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Peters' American Delicacy Co Ltd v Heath (1939) 61 CLR 456
Primac Holdings Ltd v IAMA Ltd (1996) 22 ACSR 454
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285
(Page 5)
1 SCOTT J: On 10 October of this year, this Court heard an application by Troy Resources NL ("Troy") seeking a mandatory injunction against Taipan Resources NL ("Taipan") requiring Taipan to send to each of its members and to disclose by way of announcement to the Australian Stock Exchange Ltd ("ASX") such statement as the court considered appropriate to correct or otherwise render no longer misleading or deceptive or likely to mislead or deceive the defendant's statement to its members dated 5 October 2000 (COR 265 of 2000).
2 The summons also sought other consequential relief.
3 At the same time and to be heard at a joint hearing, an application was lodged by Robert Charles Catto ("Catto") and Batoka Pty Ltd ("Batoka") against Taipan seeking orders restraining Taipan from proceeding with a meeting of its shareholders proposed to be held on 12 October 2000 and again for other and consequential orders (COR 266 of 2000).
4 The two applications were heard together, although in some respects quite different considerations apply to each of them.
5 The first application considered was the application by Troy against Taipan in COR 265 of 2000. In relation to that application and as a matter having no bearing upon the second application in COR 266 of 2000, submissions were made by counsel for the Australian Securities and Investments Commission ("ASIC") and the Corporations and Securities Panel ("the Panel") to the effect that this Court did not have jurisdiction to entertain the application by Troy.
6 In order to understand each of these applications, it is necessary to explain something of the background of the relationship between the parties.
7 The first application arose out of a proposal by Taipan to St Barbara Mines Ltd ("St Barbara") that Taipan and St Barbara merge by way of a scheme of arrangement ("the scheme of arrangement")
8 The meeting of Taipan was scheduled to be held on 12 October 2000, that is, two days after the application was heard in chambers. For that reason, the matter had to be determined ex tempore as significant consequences turned upon the decision. In particular, to have granted the orders sought, would have resulted in an adjournment of the shareholders' meeting of Taipan scheduled for 12 October, and a rescheduling of that meeting. Such a course would have involved
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- considerable expense to Taipan and a great deal of inconvenience to that company's shareholders.
9 In addition to the proposed scheme of arrangement and independently of it, Troy had sought to make a takeover bid for Taipan, which Troy maintained would have been to the advantage of Taipan shareholders. From Troy's perspective the proposed takeover would have resulted in greater benefits to Taipan shareholders than would have followed from the merger with St Barbara. The takeover proposed by Troy, however, was conditional upon the shareholders of Taipan rejecting the proposed merger with St Barbara.
10 As part of the history of the matter, on 21 September, this year, Anderson J adjourned an earlier scheduled meeting of Taipan convened to consider the merger proposal. The reason for that adjournment was so that certain shareholders of Taipan could place before all of the shareholders of that company, material which would inform them of reasons why the scheme of arrangement should not proceed and why the offer to be made by Troy was a better proposal. A letter was sent to the shareholders of Taipan and the contents of that letter will be referred to later in the course of these reasons.
11 The matter giving rise to the two applications arose out of an announcement by Taipan on Thursday, 5 October 2000 to the ASX that its chairman had written to the shareholders of the company proffering reasons why the shareholders should vote for the scheme of arrangement with St Barbara.
12 Counsel for Troy submitted that the chairman's letter to the shareholders of Taipan contained false and misleading information with respect to the merits of the scheme of arrangement. It was contended that the letter by the chairman of Taipan directed to the shareholders of that company was misleading or deceptive within the meaning of s 995(2) of the Corporations Law. It is not necessary to reproduce that provision for the purposes of these reasons other than to say that it proscribes conduct that is misleading or deceptive or is likely to mislead or deceive in certain defined circumstances.
13 Relying upon the provisions of s 995 of the Corporations Law, counsel for Troy maintained that the information put before the shareholders of Taipan should have been corrected before those shareholders were asked to vote upon the scheme of arrangement. Counsel submitted that because of the misleading nature of the letter, the
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- meeting of Taipan should have been adjourned to give the chairman time to correct the inaccuracies.
14 By way of general background, the complaint by Catto and Batoka in COR 266 of 2000, similarly revolved around the same letter. Those applicants sought an adjournment of the meeting to be held on 12 October 2000 so that accurate information could be placed before the shareholders of Taipan before the scheme of arrangement was voted upon.
15 As a preliminary point in relation to the application by Troy, the point was taken by counsel for ASIC and separately by counsel for the Panel that jurisdiction to deal with the application by Troy fell within the exclusive jurisdiction of the Panel. It followed that this Court had no jurisdiction to entertain Troy's application.
16 In the end result by way of ex tempore decision, this court determined that the appropriate course was to refrain from exercising jurisdiction and remit the matter to the Panel for hearing and determination. In that respect it was indicated that more detailed reasons would later be given as to why that course was appropriate. In relation to that application, these are the reasons.
17 Before dealing in detail with the reasons for the decision in COR 265 of 2000, it is necessary to explain something of the background of COR 266 of 2000. As I have already said in that application the applicant shareholders of Taipan were seeking to have the meeting scheduled for 12 October 2000 adjourned so that the inaccuracies in the chairman's letter could be addressed and shareholders could be appraised of the relative merits of the scheme of arrangement as against the proposed Troy takeover. Again in relation to that matter and after detailed argument, the court determined not to grant the adjournment of the meeting and indicated that more detailed reasons would be given. Those reasons will be dealt with later in the course of these reasons.
18 Dealing first with COR 265 of 2000, as I have said the court accepted that this matter should be remitted to the Panel. The Panel is created under Part 10 of the Australian Securities and Investment Commission Act 1989, which in s 171 establishes the Panel and its membership. Section 174 of that Act provides:
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- "SECTION 174 FUNCTIONS AND POWERS OF PANEL
- 174(1) The Panel has the functions and powers conferred on it by or under a national scheme law of this or any other jurisdiction."
19 Relevantly, for the purposes of the present application, the jurisdiction is given to the Panel under Chapter 6 Div 2 of the Corporations Law. Section 657A(1) of the Corporations Law provides:
"657A(1) The Panel may declare circumstances in relation to the affairs of a company to be unacceptable circumstances. Without limiting this, the Panel may declare circumstances to be unacceptable circumstances whether or not the circumstances constitute a contravention of a provision of this Law.
657A(2) The Panel may only declare circumstances to be unacceptable circumstances if it appears to the Panel that the circumstances:
(a) are unacceptable having regard to the effect of the circumstances on:
(i) the control, or potential control, of the company or another company; or
(ii) the acquisition, or proposed acquisition, by a person of a substantial interest in the company or another company; or
(b) are unacceptable because they constitute or give rise to, a contravention of a provision of this Chapter or of Chapter 6A, 6B or 6C.
The Panel may only make a declaration under this subsection, or only decline to make a declaration under this subsection, if it considers that doing so is not against the public interest after taking into account any policy considerations that the Panel considers relevant."
20 It is common ground that this application was made in the course of what the Corporations Law refers to as the "bid period".
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21 It is to be noted in passing that the Panel has power to refer any question of law arising from a proceeding before the Panel to a court for decision (s 659A). It is also common ground that although Troy had not yet made a takeover bid but was proposing to do so, that the matter could come within the provisions of s 657A(2)(a)(ii), set out earlier in these reasons. That was so because the bid, which Troy intended to make, came within the meaning of "proposed acquisition" within the meaning of that section.
22 The central matter falling for determination was whether this application looked at in a global sense came within the meaning of the term "in relation to a takeover bid" within the meaning of s 659B(4) of the Corporations Law. That section provides:
"659B(4) For the purposes of this section: court proceedings in relation to a takeover bid or proposed takeover bid:
(a) means any proceedings before a court in relation to:
(i) an action taken or to be taken as part of, or for the purposes of, the bid or the target's response to the bid; or
(ii) a document prepared or to be prepared, or a notice given or to be given, under this Chapter;".
24 It was submitted by counsel for the Panel that the Panel comprises persons with expertise in the area of company takeovers and that, although an ad hoc body, it was capable of meeting at short notice. It was said, therefore, that the Panel would be capable of dealing with this matter
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- within the very limited timeframe available. It was also contended by counsel both for ASIC and for the Panel that the Panel was to be the main forum for resolving disputes about takeover bids during the bid period. It was therefore contended that the matter should come within the exclusive jurisdiction of that Panel so that the court had no jurisdiction to deal with the matter. It was submitted on behalf of ASIC that s 659B(4) was the central issue upon which the court should focus. The issue being whether these proceedings were "court proceedings in relation to a takeover bid or proposed takeover bid". Counsel for ASIC, supported by counsel for the Panel, contended that this application was directed towards compelling the directors of Taipan to put information before its shareholders so as to put into a fair and accurate light, the respective merits of the scheme of arrangement as against the Troy takeover bid. If the matter is thus characterised, it can readily be seen that the purpose of the application was part of the action being taken by Troy to promote the merits of its proposed bid.
25 It was not necessary to determine whether in those circumstances the court was precluded from hearing such an application. It was only necessary to determine whether the application should more appropriately have been dealt with by the Panel. The court concluded that such a course was appropriate. The primary reason was that whilst the formal takeover bid had not yet been made, it was preferable for the Panel to be appraised of the nature of these proceedings before that stage was reached so that should the Troy takeover bid have been made, the Panel would be familiar with the whole of the proceedings, including the manoeuvrings that preceded the bid being made. In those circumstances, the court's view was that the Panel should more appropriately handle the matter at this stage bearing in mind that it was said that the Panel could be convened at short notice and deal with the matter before the meeting was scheduled.
26 It should be emphasised that this matter was dealt with on an ex tempore basis and that counsel were unable to point the court to any authority dealing with these provisions. In that respect it is important to note that these reasons relate only to the particular circumstances of this case, where peculiarly complex considerations fell for determination. Whilst it was correctly contended that the matter for determination did not directly relate to the proposed takeover bid, which Troy intended to launch, it was this Court's view that the matter was sufficiently connected with that proposal so that the matter should more appropriately be dealt with by the Panel.
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27 For these reasons the court determined that the application in COR 265 of 2000 should be remitted to the Panel for hearing and determination.
28 The second application in COR 266 of 2000 has been outlined earlier in these reasons and as indicated the court ultimately concluded that an order should not be granted restraining the meeting of Taipan scheduled to be held on 12 October 2000. These are the court's reasons for reaching that conclusion.
29 That application was to a large extent based upon the same material as in COR 265 of 2000 in that the applicants in that matter as shareholders of Taipan, sought to have the Taipan meeting restrained because of what was said to be misleading and deceptive material contained within the memorandum from the executive chairman to the shareholders of Taipan. That memorandum is to be found conveniently as exhibit LPC 1 to the affidavit of Lee Philip Clark sworn 9 October 2000.
30 The substance of the complaint about the memorandum is that it is said that it contains material which is inconsistent with the independent specialist's report prepared by Australian Mining Consultants ("AMC") evaluating the merger proposal.
31 It is not necessary to descend into any detail as to the way in which those inconsistencies arise, except to express the view that the material contained in the memorandum is both materially different to, and far more optimistic than, the independent expert's report prepared by AMC. The AMC report can be found at page 133 in the affidavit of Lee Philip Clark sworn 9 October 2000. It is common ground that the memorandum under discussion was inconsistent with the AMC report. The issue, however, was whether the material in the memorandum could properly be described as misleading and deceptive. The argument was, that if the material could be so categorised, then the court should have granted the injunction so as to restrain the holding of the meeting whilst the misleading and deceptive material was rectified by the executive chairman of Taipan.
32 In making that determination, it was important to note that Stephen Miller, the executive chairman of St Barbara, in a paper prepared for the Australian Gold Conference in April 2000, presented information consistent with the material in the memorandum. Accordingly, whilst it is correct to say that the material in the memorandum was inconsistent with the independent AMC report, it was not inconsistent with other material provided to Taipan and upon which the executive chairman's
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- memorandum was based. Importantly, also, in a statement to the ASX, St Barbara released Mr Miller's paper as part of an announcement to the ASX. By that means, the information provided by St Barbara was placed into the public arena as material available to shareholders.
33 As I apprehend the applicants' case in this instance, the real difficulty with the letter from the executive chairman of Taipan to the shareholders arises from the fact that the memorandum is based upon the material emanating from St Barbara and presented in the paper to the Australian Gold Conference, without identifying the fact that the material came from that source. In addition, it was contended that the memorandum failed to identify the conflicting material contained in the AMC report, which would have placed a different, and less optimistic, picture before the shareholders. In that respect, however, it is important to note that the AMC report and other reports were forwarded to the shareholders under cover of the memorandum, so that discerning shareholders would have had the opportunity of evaluating not only the memorandum from the executive chairman of the respondent, but also the independent expert analysis had the shareholders chosen to undertake that analysis. Counsel for the applicants, however, maintains that a shareholder would be highly unlikely to undertake that analysis and would be more likely to rely upon the letter from the executive chairman of the company as the most reliable basis to evaluating the merger proposal. The legal tests to be applied in relation to such considerations will be discussed later in these reasons.
34 As I said in the brief extempore reasons delivered on 11 October, in this respect, in my view, the applicants had an arguable case and therefore there was a serious question to be tried cf Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 per Mason ACJ at 153.
35 In my view, had the defendant not forwarded to the shareholders the AMC report, then arguably an injunction should have been granted until that step had been taken. It is however important to note that the report was provided to the shareholders so that, as I have said, any shareholder who wished to do so, could have taken that report into account when evaluating the memorandum from the executive chairman.
36 In Acacia Resources Ltd v Delta Gold (1999) ACSR 144, Warren J said at 152 [27]:
"It has been generally recognised that from the perspective of an offeror the requirements of clause 17 of section 750 of the law are possibly the most difficult provisions with which an offeror
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- has to comply. The offeror must make a judgment as to whether other information is 'material' to the decision making process that the offeree must embark upon as a result of the offer. The approach of the courts has been one of not reading down clause 17 in the light of the other requirements of section 750: see Cumberland Holdings Ltd (1976) ACLR 361 at 368-9; Re Evans Deacon Exploration and Producing Australia Pty Ltd(1996) 65 FCR 503; 19 ACSR 354 at 381 ff; Cultus Petroleum NL v OMV Australia Pty Ltd (1999) 32 ACSR 1 at 11-12.
The basic principle adopted by the courts is that a matter is material if it might reasonably affect, or tend to affect, the decision of the ordinary investor whether or not to accept the offer: Cackett v Keswick [1902] 2 Ch 456 at 464; also, Australian Consolidated Investments Ltd v Rossington Holdings Pty Ltd (1992) 35 FCR 226; 106 ALR 221; 7ACSR 341. It is sufficient that facts that are omitted from disclosure to the shareholder of the target company are such that they would have a significant propensity to affect the shareholder's decision; Cultus Petroleum NL, supra, at 12.
On the other hand, the courts have considered that clause 17 of section 750 should not be interpreted in such a way as to unreasonably impede takeover bids."
37 As I have already indicated in these reasons whilst in my view the applicants have an arguable case that the information in the memorandum was misleading insofar as it was based upon St Barbara's own evaluation without reference to either the source or the figures contained in the independent AMC report, other material was provided to the shareholders so that the shareholders were not necessarily misled as to the true position of St Barbara.
38 Counsel for the applicants properly submitted that it was unrealistic to expect a shareholder to read in detail the voluminous material forwarded with the explanatory memorandum so as tease out the countervailing considerations contained in the AMC report. In that respect, counsel referred to the decision of Frankie J in Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 at 176:
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- "The test is whether in an objective sense the conduct of the appellant was such as to be misleading or deceptive when viewed in the light of the type of person who is likely to be exposed to that conduct. Broadly speaking, it is fair to say that the question is to be tested by the effect on a person, not particularly intelligent or well informed, but perhaps of somewhat less than average intelligence and background knowledge, although the test is not the effect on a person who is, for example, quite unusually stupid. The question is not whether the purchaser was deceived or whether the conduct was misleading or deceptive."
39 That passage was approved by Wilcox and Heary JJ in Siddons Pty Ltd v The Stanley Works Pty Ltd (1991) 29 FCR 14 at 18, citing with approval the judgment of Lockhart J in Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 at 515-516.
40 In this case the relevant class of persons to whom this Court needs to look are the shareholders of Taipan as the recipients of the memoranda and accompanying documents.
41 The second test set out by Mason ACJ in Castlemaine Tooheys Ltdsupra, that is, "that [the plaintiff] will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted", was not a substantial consideration in this case.
42 The third matter for consideration in Castlemaine Tooheys Ltdsupra, of far more importance in this case, was "that the balance of convenience favours the granting of an injunction".
43 In relation to the balance of convenience argument, it is important to note that in a similar matter, S & O Nominees Pty Ltd & Ors v Taipan Resources NL [2000] WASC 270, heard on 20 September 2000, Anderson J granted an application to adjourn the proposed meeting of Taipan, which was scheduled to take place the following day (21 September 2000). His Honour did so for a number of reasons but particularly so that the applicants in that matter could be provided with a copy of the register of members of Taipan. The applicants wanted to correct what were said to be the deficiencies in the memorandum from the executive chairman. Anderson J granted the adjournment and the meeting was rescheduled for 12 October. The applicants in that matter availed themselves of the opportunity of forwarding to the shareholders of Taipan a memorandum setting out the deficiencies in the executive chairman's
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- memorandum and pointing out the opposing contentions. That memorandum is to be found as exhibit RJCC1 to the affidavit of Robert Charles Catto, sworn 9 October 2000. That letter, on the letterhead of Christopher B Ryan and Robert J C Catto, points out to the shareholders of Taipan in some detail, the deficiencies in the executive chairman's memorandum, and advances reasons why the merger between Taipan and St Barbara should not go ahead. The letter not only points out the deficiencies in the valuation evidence, but also stresses the advantages of the proposed takeover offer by Troy. Whilst it is fair to say that the letter does not emphasise what is said to be the over optimistic nature of the executive chairman's memorandum, it does point out the competing valuation evidence and the reasons why the proposed Troy offer represents better value to the shareholders than the proposed merger.
44 In the course of the argument before me, much was made of the fact that the deficiencies in the executive chairman's memorandum, should have been corrected by the executive chairman. In my view, the important aspect of the matter is that the shareholders of Taipan had the competing considerations before them for evaluation before determining how to vote at the meeting of 12 October. Again, as I have said earlier in these reasons, whilst the applicants have established an arguable case, it is of significance that the competing arguments were before the shareholders of Taipan for consideration.
45 In the course of argument, counsel for the respondent maintained a view that the present applications were effectively disposed of by the decision of Anderson J, to which I have referred. It was contended that the principles in Port of Melbourne Authority v Anshun Pty Ltd (1980-81) 147 CLR 589 applied to this case. It was contended that the matters presently in issue could properly have been raised before Anderson J and that it was unreasonable for them to raise the matter in these separate proceedings the day before the scheduled meeting when they could conveniently have been dealt with at that earlier date by his Honour. The contrary argument was presented in some detail by counsel for the applicants, who pointed out that in any event in these proceedings the parties were not identical to those before Anderson J so that the principle of Anshun should not be applied.
46 It is not necessary to resolve that interesting question in view of the conclusion reached that the injunction should not issue in any event.
47 In this case, in my view, the balance of convenience issue ran in favour of the defendant. The applicants were given the opportunity by
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- Anderson J to place the competing material before the shareholders of Taipan in addition to which, as I have said, the independent assessment was already before them for consideration, although not referred to in the executive chairman's memorandum. If the meeting of Taipan had been adjourned, not only would there have been the costs of rescheduling the shareholders' meeting of Taipan after the appropriate documentation had been provided, but also the meeting of St Barbara scheduled for the following day. Had the application succeeded, the shareholders of Taipan would have received an additional memorandum from the executive chairman pointing out the source material for the original memorandum and pointing out the material discrepancies between that and the provisions in the AMC report. In my opinion, as all that material was already before the shareholders had they chosen to evaluate it, the balance of convenience clearly lay in favour of the respondent.
48 It is not necessary to deal with further arguments presented by counsel for the respondent and in particular the contention that there was close co-operation between the present applicants and Troy, the competing party interested in taking over Taipan. Whether that argument has merit is a matter for resolution at trial.
49 It was not disputed that St Barbara had in excess of 10,000 shareholders who would have had to have been circulated with the new material.
50 In my opinion the balance of convenience clearly fell in favour of the respondent.
51 For these reasons I concluded with respect to COR 266 of 2000 that the application should be dismissed and the question of costs reserved to the trial Judge.
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