Trade Practices Commission v A.P.M. Investments Pty Ltd & Ors [1983] FCA 334

Trade Practices Commission v A.P.M. Investments Pty Ltd & Ors [1983] FCA 334

No new or unforeseeable circumstances sufficient to justify release from the undertakings have arisen since the Full Court's decision; the ongoing reciprocal and contractual nature of the undertakings, and foreseeability of commercial uncertainty and potential harm, mean the applicants must remain bound. Amatil's resolution not to sell to APM does not constitute a legal or binding bar sufficient to affect the undertakings.

Parties
Applicant: Trade Practices Commission; First Respondent: A.P.M. Investments Pty. Limited; Second Respondent: Fibre Containers Limited; Third Respondent: Leigh-Mardon Pty. Limited; Fourth Respondent: Associated Nominees Pty. Limited; Fifth Respondent: Francis James Burke; Sixth Respondent: Peter Becker; Seventh Respondent: William Gibson; Eighth Respondent: John Francis Elfversson; Ninth Respondent: Arthur Kevin Smith
Jurisdiction
Australia
Judgment Date
15 November 1983
Procedural Posture
Application for Release From Undertakings in Interlocutory Proceedings / Post Interlocutory, After Full Court Appellate Decision; Further Application for Release
Outcome
Application dismissed
Legal Topics
Undertakings, Interlocutory Injunctions, Takeover Bids, Section 50 Trade Practices Act, Release From Undertakings
Competition Law Undertakings Interlocutory Injunctions Takeover Bids Section 50 Trade Practices Act Release From Undertakings

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Parties

Trade Practices Commission

Applicant

A.P.M. Investments Pty. Limited

First Respondent

Fibre Containers Limited

Second Respondent

Leigh-Mardon Pty. Limited

Third Respondent

Associated Nominees Pty. Limited

Fourth Respondent

Francis James Burke

Fifth Respondent

Peter Becker

Sixth Respondent

William Gibson

Seventh Respondent

John Francis Elfversson

Eighth Respondent

Arthur Kevin Smith

Ninth Respondent

Procedural Posture

Application for Release From Undertakings in Interlocutory Proceedings / Post Interlocutory, After Full Court Appellate Decision; Further Application for Release

Legal Issues

  1. 1 Whether new circumstances justify release from undertakings given to the Court at the commencement of proceedings regarding takeover of FCL by APM
  2. 2 Whether the contractual nature of reciprocal undertakings prevents release absent unforeseen circumstances
  3. 3 Whether Amatil's resolution not to sell to APM constitutes a new circumstance

Ratio Decidendi

No new or unforeseeable circumstances sufficient to justify release from the undertakings have arisen since the Full Court's decision; the ongoing reciprocal and contractual nature of the undertakings, and foreseeability of commercial uncertainty and potential harm, mean the applicants must remain bound. Amatil's resolution not to sell to APM does not constitute a legal or binding bar sufficient to affect the undertakings.

Court Disposition

Application dismissed

Orders

  • The notice of motion be dismissed.
  • Costs be reserved.