Fedsure International Limited v NSP Financial Services Group Pty Limited and Ors [2001] NSWSC 910

Fedsure International Limited v NSP Financial Services Group Pty Limited and Ors [2001] NSWSC 910

Clause 14.3 deemed an offer to have been made by the shareholder whose control changed on the day before the change of control, without any further act, notice or price stipulation by the deemed offeror. The price and number of shares were ascertainable through the mechanisms in Clauses 14.4 and 14.5, so the deemed offer was capable of acceptance and the 30 day acceptance period ran from 4 June 2001. Because the Second to Fourth Defendants did not accept within that period, their later purported acceptances were ineffective.

Jurisdiction
Australia
Judgment Date
16 October 2001
Procedural Posture
Summons Seeking Declarations as to the Construction of Pre Emptive Rights Clauses in a Shareholders Agreement / Judgment After Hearing in the Equity Division, Commercial List
Outcome
Plaintiff succeeded; declarations and orders as sought by the Plaintiff.
Legal Topics
['contract Construction' 'pre Emptive Rights' 'change in Control' 'deemed Offer' 'shareholders Agreement']
['contract' 'corporations'] ['contract Construction' 'pre Emptive Rights' 'change in Control' 'deemed Offer' 'shareholders Agreement']

Case Brief

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Procedural Posture

Summons Seeking Declarations as to the Construction of Pre Emptive Rights Clauses in a Shareholders Agreement / Judgment After Hearing in the Equity Division, Commercial List

Legal Issues

  1. 1 ['On the proper construction of the Shareholders Agreement, the date upon which the deemed offer was open to be accepted by the Second to Fourth Defendants.' 'Whether the deemed offer was accepted within the time that it was open to be accepted.' 'Whether an offer deemed to be made under Clause 14.3 was capable of acceptance before the price was determined under Clauses 14.4 and 14.5.']

Ratio Decidendi

Clause 14.3 deemed an offer to have been made by the shareholder whose control changed on the day before the change of control, without any further act, notice or price stipulation by the deemed offeror. The price and number of shares were ascertainable through the mechanisms in Clauses 14.4 and 14.5, so the deemed offer was capable of acceptance and the 30 day acceptance period ran from 4 June 2001. Because the Second to Fourth Defendants did not accept within that period, their later purported acceptances were ineffective.

Court Disposition

Plaintiff succeeded; declarations and orders as sought by the Plaintiff.

Orders

  • ['A deemed offer was duly made by the Plaintiff to the Second to Fourth Defendants in accordance with Clause 14.3 of the Shareholders Agreement on 4 June 2001.' 'None of the Second to Fourth Defendants accepted that offer within the 30 day period commencing on 4 June 2001.' 'The matter was stood over for a short...