McMillan Properties Pty Ltd v W C Penfold Ltd & Anor [2001] NSWSC 1173

McMillan Properties Pty Ltd v W C Penfold Ltd & Anor [2001] NSWSC 1173

Where an acquisition occurs by an issue and allotment of shares, there is no person from whom the acquisition is made under s 611 item 7(a)(ii) of the Corporations Act 2001. Thus, the prohibition on voting does not apply to W C Penfold Limited and a resolution is not invalid due to their vote.

Parties
Plaintiff: McMillan Properties Pty Ltd; First Defendant: W C Penfold Limited; Second Defendant: Penfold Printing Limited
Jurisdiction
Australia
Judgment Date
11 December 2001
Procedural Posture
Corporations Matter (declaratory Proceedings) / Judgment After Contested Hearing
Outcome
Declaratory relief refused to plaintiff; reverse declaration made in favour of first defendant; proceedings otherwise dismissed; costs ordered against plaintiff.
Legal Topics
Takeovers, Reverse Takeovers, Shareholder Voting, Statutory Interpretation, Exceptions to Takeover Prohibitions
Corporations Law Takeovers Reverse Takeovers Shareholder Voting Statutory Interpretation Exceptions to Takeover Prohibitions

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Parties

McMillan Properties Pty Ltd

Plaintiff

W C Penfold Limited

First Defendant

Penfold Printing Limited

Second Defendant

Procedural Posture

Corporations Matter (declaratory Proceedings) / Judgment After Contested Hearing

Legal Issues

  1. 1 Whether votes cast by W C Penfold Limited on Resolution No 3 at a general meeting of Penfold Printing Limited should be disregarded under s 611, item 7(a)(ii), Corporations Act 2001 due to its status as an associate

Ratio Decidendi

Where an acquisition occurs by an issue and allotment of shares, there is no person from whom the acquisition is made under s 611 item 7(a)(ii) of the Corporations Act 2001. Thus, the prohibition on voting does not apply to W C Penfold Limited and a resolution is not invalid due to their vote.

Court Disposition

Declaratory relief refused to plaintiff; reverse declaration made in favour of first defendant; proceedings otherwise dismissed; costs ordered against plaintiff.

Orders

  • A resolution passed at a general meeting of Penfold Printing Limited in terms of the proposed resolution No 3, notice of which has been given to shareholders in a notice of meeting dated 28 November 2001, will not be an invalid resolution of Penfold Printing Limited by reason of W C Penfold Limited casting a vote on...
  • The proceedings be otherwise dismissed.