Re Elders Australia Ltd; Super John Pty Ltd & Ors v Futuris Rural Pty Ltd [1997] FCA 1006

Re Elders Australia Ltd; Super John Pty Ltd & Ors v Futuris Rural Pty Ltd [1997] FCA 1006

The amended statement of claim was not so clearly untenable that it could not possibly succeed. The applicants' case was distinguishable from Marsford because it alleged that wrongful conduct directed to a substantial shareholder, General Oriental, prevented opposition to the takeover and arguably affected market forces and the fairness of the offer to shareholders as a whole. The allegations in paragraphs 23, 23A and 23B could conceivably satisfy the applicable standard of unfairness under s 701(6), and any evidentiary difficulties did not justify striking out the pleading at this stage.

Jurisdiction
Australia
Judgment Date
26 September 1997
Procedural Posture
Corporations Law Application Under S 701(6) Concerning Compulsory Acquisition of Dissenting Offerees' Shares / Respondent's Notice of Motion to Strike Out the Amended Statement of Claim Pursuant to O 11 R 16 of the Federal Court Rules
Outcome
The respondent's notice of motion was dismissed with costs.
Legal Topics
['strike Out of Pleadings' 'no Reasonable Cause of Action' 'takeover Offers' 'compulsory Acquisition of Shares' 'dissenting Offerees' 'fairness Under S 701(6) of the Corporations Law' 'misleading or Deceptive Conduct']
['practice and Procedure' 'corporations Law'] ['strike Out of Pleadings' 'no Reasonable Cause of Action' 'takeover Offers' 'compulsory Acquisition of Shares' 'dissenting Offerees' 'fairness Under S 701(6) of the Corporations Law' 'misleading or Deceptive Conduct']

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Procedural Posture

Corporations Law Application Under S 701(6) Concerning Compulsory Acquisition of Dissenting Offerees' Shares / Respondent's Notice of Motion to Strike Out the Amended Statement of Claim Pursuant to O 11 R 16 of the Federal Court Rules

Legal Issues

  1. 1 ['Whether the whole or parts of the amended statement of claim should be struck out under O 11 r 16 of the Federal Court Rules for disclosing no reasonable cause of action.' "Whether the applicants' case for relief under s 701(6) of the Corporations Law was so clearly untenable that it could not possibly succeed." 'Whether alleged wrongful conduct directed to General Oriental could arguably affect the fairness of the takeover offer to the body of shareholders as a whole.' 'Whether Re Allied Queensland Coalfields Ltd; Super John Pty Limited and Others v Marsford Investments Pte Limited governed the present proceedings.']

Ratio Decidendi

The amended statement of claim was not so clearly untenable that it could not possibly succeed. The applicants' case was distinguishable from Marsford because it alleged that wrongful conduct directed to a substantial shareholder, General Oriental, prevented opposition to the takeover and arguably affected market forces and the fairness of the offer to shareholders as a whole. The allegations in paragraphs 23, 23A and 23B could conceivably satisfy the applicable standard of unfairness under s 701(6), and any evidentiary difficulties did not justify striking out the pleading at this stage.

Court Disposition

The respondent's notice of motion was dismissed with costs.

Orders

  • ['The notice of motion be dismissed with costs.']