Cemex Australia Pty Ltd v Takeovers Panel [2009] FCAFC 78

Cemex Australia Pty Ltd v Takeovers Panel [2009] FCAFC 78

The appeal failed because the Panel was not required to decide whether CEMEX contravened the Corporations Act before declaring unacceptable circumstances under s 657A(2)(a) and (b); its construction that CEMEX had not reserved a discretion to improve its best and final offer by allowing retention of the final dividend was open and correct; there was evidence and commercial material supporting the Panel's findings about market misinformation and effect on control; s 657D authorised a group-based protective order for shareholders who sold in the misinformed market without proof of individual reliance or loss; and ASIC's role under orders 14-16 was an administrative or mechanical...

Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Appeal From Dismissal of Judicial Review Application Concerning a Takeovers Panel Declaration of Unacceptable Circumstances and Orders / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['unacceptable Circumstances' 'takeovers Panel Powers' 'best and Final Offer Statements' 'misleading or Misinformed Market' 'remedial Orders for Affected Shareholders' 'delegation of Functions to Asic']
['corporations Law' 'takeovers' 'administrative Law' 'judicial Review'] ['unacceptable Circumstances' 'takeovers Panel Powers' 'best and Final Offer Statements' 'misleading or Misinformed Market' 'remedial Orders for Affected Shareholders' 'delegation of Functions to Asic']

Case Brief

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Procedural Posture

Appeal From Dismissal of Judicial Review Application Concerning a Takeovers Panel Declaration of Unacceptable Circumstances and Orders / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the Takeovers Panel was bound to consider whether CEMEX's conduct amounted to a contravention of the Corporations Act 2001 (Cth)." "Whether the Panel erred in its construction of CEMEX's bidder's statement and later takeover documents." 'Whether there was evidence before the Panel to justify findings that the market was misinformed and that the circumstances affected control or acquisition of Rinker.' 'Whether the Panel could make orders requiring payment to a group of shareholders without evidence of individual loss by each shareholder.' 'Whether orders 14-16 involved an impermissible delegation of power to ASIC.']

Ratio Decidendi

The appeal failed because the Panel was not required to decide whether CEMEX contravened the Corporations Act before declaring unacceptable circumstances under s 657A(2)(a) and (b); its construction that CEMEX had not reserved a discretion to improve its best and final offer by allowing retention of the final dividend was open and correct; there was evidence and commercial material supporting the Panel's findings about market misinformation and effect on control; s 657D authorised a group-based protective order for shareholders who sold in the misinformed market without proof of individual reliance or loss; and ASIC's role under orders 14-16 was an administrative or mechanical...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The appellant pay the costs of the second respondent.' "No orders as to the Panel's costs."]