Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) & Ors [1996] FCA 825

Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) & Ors [1996] FCA 825

The appeal and cross-appeals were dismissed because the primary Judge's discretionary refusal to order specific compliance or to freeze the shares or proceeds did not miscarry in the unusual circumstances of competing takeover offers and genuine Swiss law concerns; s 742(2) did not independently authorise a freezing order over sale proceeds absent a mandatory compliance order; a secondary notice under s 719 could be given by fax upon actual full and legible receipt; s 719 authorised giving a secondary notice to a foreign corporation even if giving it might infringe local law; and the findings concerning article 271 and refusal to excuse contraventions under s 743 were within permissible...

Jurisdiction
Australia
Judgment Date
18 September 1996
Procedural Posture
Corporations Law Appeal and Cross Appeals Concerning Remedial Orders and Secondary Notices / Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal dismissed with costs; first cross-appeal dismissed with costs; second cross-appeal dismissed with costs.
Legal Topics
['substantial Shareholding Disclosure' 'primary Notices and Secondary Notices' 'remedial Orders' 'vesting and Sale of Shares' 'service by Facsimile' 'extraterritorial Operation of Corporations Law' 'swiss Secrecy Law']
['corporations Law' 'civil Procedure' 'conflict of Laws'] ['substantial Shareholding Disclosure' 'primary Notices and Secondary Notices' 'remedial Orders' 'vesting and Sale of Shares' 'service by Facsimile' 'extraterritorial Operation of Corporations Law' 'swiss Secrecy Law']

Case Brief

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Procedural Posture

Corporations Law Appeal and Cross Appeals Concerning Remedial Orders and Secondary Notices / Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the primary Judge was right in declining to make orders specifically enforcing compliance by Leumi and EBC with their obligations under the Corporations Law.' 'Whether the primary Judge was right in refusing an order vesting the shares or their proceeds, conditionally or otherwise, in the Commission.' 'Whether the Court has power to make an order vesting in the Commission the proceeds of sale of shares, or otherwise to freeze those proceeds, for contravention of s 722 or s 723.' 'Whether a secondary notice under s 719 may be given by fax.' 'Whether s 719 authorises giving a secondary notice in a manner which infringes the law of the place where the notice is given.' 'Whether there was a real and appreciable risk that EBC, if it complied with the secondary notice, would breach article 271 of the Swiss Penal Code.' 'Whether contraventions of s 722 should have been excused under s 743.']

Ratio Decidendi

The appeal and cross-appeals were dismissed because the primary Judge's discretionary refusal to order specific compliance or to freeze the shares or proceeds did not miscarry in the unusual circumstances of competing takeover offers and genuine Swiss law concerns; s 742(2) did not independently authorise a freezing order over sale proceeds absent a mandatory compliance order; a secondary notice under s 719 could be given by fax upon actual full and legible receipt; s 719 authorised giving a secondary notice to a foreign corporation even if giving it might infringe local law; and the findings concerning article 271 and refusal to excuse contraventions under s 743 were within permissible...

Court Disposition

Appeal dismissed with costs; first cross-appeal dismissed with costs; second cross-appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.' 'The cross appeal of the first cross-appellant be dismissed with costs.' 'The cross appeal of the second cross-appellant be dismissed with costs.']