Brierley Investments Ltd v Australian Securities Commission & Anor [1997] FCA 889

Brierley Investments Ltd v Australian Securities Commission & Anor [1997] FCA 889

An acquisition of shares not greater than 3% is capable of constituting a substantial interest under section 732 of the Corporations Law, depending on the particular circumstances; the ASC could properly form the view that unacceptable circumstances may have occurred, and its decision to make an application to the Panel is not vitiated by procedural unfairness. The President of the Panel acted within power in consenting to the participation of members with disclosed but immaterial or indirect interests.

Parties
First Applicant: Brierley Investments Limited; Second Applicant: Godine Capital Limited; Third Applicant: Yellow Ridge Nominees Pty Limited; Fourth Applicant: Harlesden Securities Pty Limited; First Respondent: Australian Securities Commission; Second Respondent: John Pascoe; Third Respondent: Denis Byrne; Fourth Respondent: Warwick Higgs; Fifth Respondent: Graham Stanford; Sixth Respondent: Merrill Lynch (Australia) Futures Limited; Seventh Respondent: MLAE Nominees Pty Limited
Jurisdiction
Australia
Judgment Date
05 September 1997
Procedural Posture
Application for Order of Review / Reasons for Judgment at First Instance
Outcome
Application dismissed
Legal Topics
Unacceptable Circumstances, Company Shares, Power of Australian Securities Commission, Corporations and Securities Panel, Procedural Fairness, Statutory Interpretation, Substantial Interest
Corporations Law Administrative Law Unacceptable Circumstances Company Shares Power of Australian Securities Commission Corporations and Securities Panel Procedural Fairness Statutory Interpretation +1 more

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Parties

Brierley Investments Limited

First Applicant

Godine Capital Limited

Second Applicant

Yellow Ridge Nominees Pty Limited

Third Applicant

Harlesden Securities Pty Limited

Fourth Applicant

Australian Securities Commission

First Respondent

John Pascoe

Second Respondent

Denis Byrne

Third Respondent

Warwick Higgs

Fourth Respondent

Graham Stanford

Fifth Respondent

Merrill Lynch (Australia) Futures Limited

Sixth Respondent

MLAE Nominees Pty Limited

Seventh Respondent

Procedural Posture

Application for Order of Review / Reasons for Judgment at First Instance

Legal Issues

  1. 1 Whether acquisition of up to 3% of shares can constitute a 'substantial interest' under section 732 of the Corporations Law
  2. 2 Whether the conduct of BIL Companies and Merrill Lynch Companies constituted unacceptable circumstances
  3. 3 Whether procedural fairness was owed prior to an application to the Panel

Ratio Decidendi

An acquisition of shares not greater than 3% is capable of constituting a substantial interest under section 732 of the Corporations Law, depending on the particular circumstances; the ASC could properly form the view that unacceptable circumstances may have occurred, and its decision to make an application to the Panel is not vitiated by procedural unfairness. The President of the Panel acted within power in consenting to the participation of members with disclosed but immaterial or indirect interests.

Court Disposition

Application dismissed