Trade Practices Commission v A.P.M. Investments Pty Ltd and Fibreglass Containers Ltd & Ors [1983] FCA 210

Trade Practices Commission v A.P.M. Investments Pty Ltd and Fibreglass Containers Ltd & Ors [1983] FCA 210

The undertakings were validly accepted and enforceable, but the justice of the developing situation required release from the existing SCI-related freeze. The likely further operation of the undertakings for months, and possibly a year or more on appeals, made the probable cost to the innocent target company a factor of very great importance that outweighed APM's contrary arguments, provided fresh undertakings maintained restraints against dealings with APM pending determination of the s.50 proceedings.

Jurisdiction
Australia
Judgment Date
22 August 1983
Procedural Posture
Application by the Trade Practices Commission Pursuant to S.50 of the Trade Practices Act 1974 Concerning a Proposed Takeover of Fibre Containers Limited by A.p.m. Investments Pty. Limited / Interlocutory Notice of Motion for Release From Undertakings Given to the Court
Outcome
Application for release from undertakings granted after fresh undertakings were accepted from the second to eighth respondents.
Legal Topics
['competing Takeover Bids' 's.50 Trade Practices Act 1974' 'interlocutory Undertakings' 'release From Undertakings' 'injunctions' 'court Discretion']
['trade Practices' 'competition Law' 'practice and Procedure'] ['competing Takeover Bids' 's.50 Trade Practices Act 1974' 'interlocutory Undertakings' 'release From Undertakings' 'injunctions' 'court Discretion']

Case Brief

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Procedural Posture

Application by the Trade Practices Commission Pursuant to S.50 of the Trade Practices Act 1974 Concerning a Proposed Takeover of Fibre Containers Limited by A.p.m. Investments Pty. Limited / Interlocutory Notice of Motion for Release From Undertakings Given to the Court

Legal Issues

  1. 1 ['Whether the Court had power to accept and enforce undertakings restraining dealings in Fibre Containers Limited shares, including undertakings concerning S.C.I. Packaging Pty. Ltd.' 'Whether Fibre Containers Limited and its shareholders should be released from undertakings that prevented dealings with S.C.I. Packaging Pty. Ltd.' 'Whether A.P.M. Investments Pty. Limited should remain restrained from acquiring additional shares in Fibre Containers Limited pending determination of the s.50 proceedings.']

Ratio Decidendi

The undertakings were validly accepted and enforceable, but the justice of the developing situation required release from the existing SCI-related freeze. The likely further operation of the undertakings for months, and possibly a year or more on appeals, made the probable cost to the innocent target company a factor of very great importance that outweighed APM's contrary arguments, provided fresh undertakings maintained restraints against dealings with APM pending determination of the s.50 proceedings.

Court Disposition

Application for release from undertakings granted after fresh undertakings were accepted from the second to eighth respondents.

Orders

  • ['The Third to Eighth Respondents undertook that until the determination of these proceedings or further order they will not sell to or accept any offer from A.P.M. Investments Pty. Limited or any related corporation of APM to purchase any shares held by them or on their behalf in Fibre Containers Limited.' 'The...