Applicant : Mr N W McKerracher QC & Mr P S Fitzpatrick

Eagles v Eagles [1960] VicRp 63; [1960] VR 400

Gerrard Co of Australasia v Johns Perry Ltd (1983) 1 ACLC 646

Players Pty Ltd v Interior Projects & Ors (1996) 14 ACLC 918

Tayros Holdings Pty Ltd v Dyar (1997) 15 ACLC 1652

1 OWEN J: This is an application for an interlocutory injunction to restrain the defendant from registering share transfers that it had received in response to a takeover offer it had made to the shareholders of the plaintiff.

2 On 28 April 2000 I made an interim injunction. During the course of that hearing some issues were identified that may determine the fate of the application for interlocutory relief and which could be decided in much the form that would be appropriate on a trial of preliminary issues. Despite the fact that there were some factual disputes I think that largely turned out to be so.

3 The plaintiff and the defendant are listed on the Australian Stock Exchange Ltd ("the ASX"). They are both involved in the research and development of therapeutic drugs, diagnostic products and the like. During the last quarter of 1999 the directors of the companies entered into negotiations to merge the two companies. One of the things stressed by the directors of Biotech was that the mechanics of the merger would have to be such as to allow the shareholders the benefit of "scrip rollover relief" in respect of capital gains tax liabilities that might be incurred on a sale of shares.

4 For this reason it was agreed that the merger would be effected by takeover rather than by way of a scheme of arrangement. On completion of negotiations it was agreed that the directors of both companies would recommend the takeover to their respective shareholders and that the directors of the plaintiff would mention the availability of scrip rollover relief. On 6 December 1999 the merger was announced to the market. On 11 February 2000 the takeover documentation (namely, the defendant's offer, the Part A statement and the Part B statement) was sent to Biotech shareholders. It contained a recommendation from the plaintiff's directors to accept the offer from the defendant.

5 Under cl 8.1 of the defendant's offer it was an express condition that the defendant acquire at least 90 per cent of the issued capital of the plaintiff. This would enable it to move to acquire compulsorily the remainder of the shares: s 710 of the Corporations Law ("the Law"). By cl 8.2 and cl 8.3 this was categorised as a condition subsequent for the benefit of the defendant and capable of being relied on only by the defendant. Clause 8.4, which is central to the resolution of this problem, is in these terms:

"Subject to the provisions of the Corporations Law, [the defendant] may declare the Offer free from any of the conditions in cl 8.1 by giving notice in writing to [the plaintiff] not less than 7 days before the end of the Offer Period. In the event that, as at the end of the Offer Period, any of the conditions in cl 8.1 have not been fulfilled and [the defendant] has not declared the Offer (and the Offer has not become) free from those conditions, the contract resulting from acceptance of this Offer will be void."

6 The offer period was originally due to expire on 17 March 2000. By 8 March the 90 per cent condition had not been met and the defendant extended the offer until 31 March. On 22 April, by a further notice to shareholders, the defendant further extended the offer until 30 April 2000. A consequence of the second extension was that the shareholders who had already accepted the defendant's offer were entitled, within one month, to withdraw their acceptance: s 658 of the Law.

7 On 24 March 2000 representatives of the companies met to discuss the progress of the offer. Exactly what occurred at that meeting is the subject of some dispute. However, the slow take-up rate was discussed, as was the possibility (which the defendant rejected) of the offer being improved. So was the question whether the defendant intended to declare the offer unconditional.

8 On 12 April 2000 the plaintiff's solicitors wrote to the defendant's solicitors seeking a written assurance that the defendant would not waive the 90 per cent condition. The plaintiff's solicitors said that unless the assurance was forthcoming by noon on the following day they intended to write to shareholders of the plaintiff advising that, unless a full merger could be achieved and if rollover relief was not available, the plaintiff's directors could not recommend acceptance and that shareholders who had already accepted were entitled to withdraw their acceptance by 23 April 2000. A copy of the draft letter to shareholders was attached, with an invitation to the defendant to join as a party to it. On 13 April the defendant's solicitors wrote back saying that the defendant would not be in a position to respond until 14 April. The plaintiff's solicitors immediately responded and requested the written assurance by noon on 14 April. Later on 13 April the defendant's solicitors communicated with the plaintiff's solicitors saying that the defendant had not reached a decision whether to declare the offer unconditional and that it did not wish to comment on the draft letter to shareholders.

9 On 18 April the plaintiff posted to shareholders the letter it had foreshadowed in the correspondence of 12 and 13 April. The letter advised shareholders that no decision had been made by the defendant whether to waive the condition and that they (the shareholders) should wait until the outcome was known. It also advised that if the 90 per cent condition were to be waived acceptance could not be recommended and that the defendant had until 26 April 2000 to decide the issue. The recommendation was phrased in this way:

"If you have not already accepted [the defendant's] offer, we recommend that you wait until it is known whether [the defendant's] offer will remain conditional upon 90% acceptances being received and then -

(a) if the 90% condition is not waived by [the defendant], you should accept the offer;

(b) if the 90% condition is waived by [the defendant], then you should not accept the offer.

If you have already accepted [the defendant's] offer, we recommend you withdraw your acceptance in the manner set out below by not later than 26 April 2000; and

(a) after 26 April 2000, if the 90% condition is not waived by [the defendant], you should accept the offer;

(b) after 26 April 2000, if the 90% condition is waived by [the defendant], then you should not accept the offer."

10 The Easter break then intervened. Friday 21 April, Monday 24 April and Tuesday 25 April 2000 were public holidays. It seems that some shareholders did not receive the letter until Wednesday 26 April. I will come back to this point a little later.

11 Under s 663 of the Law, where an offeror declares an offer to be free from a condition it must prepare a notice to that effect and lodge a copy for publication in a newspaper and, by virtue of s 663(8)(b), serve a copy of the notice on the ASX. Just what constitutes the "ASX" for this purpose is one of the issues that I will have to resolve and I will return to it later. At some time on Thursday 20 April 2000 the defendant lodged the notice for publication in "The Australian" newspaper on 22 April. At about 5.30pm on 20 April the defendant's solicitors sent a facsimile copy of the notice to the Manager of the ASX in Perth. At 5.00pm on 20 April the defendant's solicitors sent a facsimile addressed to "Mr David Fawcett, Chairman, Biotech International Ltd, 14B Brennan Way, Belmont, WA, 6104" advising that it had waived the 90 per cent acceptance condition. There is some dispute about the exact size and significance of the Belmont office. What is not in dispute is that it is not the registered office and nor is it the main or largest business office operated by the plaintiff.

12 It is either common ground, or I will accept for the purpose of this application:

(a) there was no-one at the Belmont office at 5.00pm on 20 April and the advice that the condition had been waived, although it was received by the facsimile machine at that time, did not actually come to the attention of any person employed by the plaintiff or otherwise capable of dealing with it until the morning of 26 April;

(b) the registered office of the plaintiff is situated in Brisbane, and the advice was not sent to the registered office;

(c) the advice was not served on any of the directors of the plaintiff;

(d) one of the directors, Neville Bassett, maintains an office in St George's Terrace, and during the currency of the negotiations and takeover, other documents had been served at that address;

(e) the "home branch" of the ASX for the plaintiff is Brisbane and the Company Announcements Office of the ASX is situated in Sydney;

(f) the copy of the notice sent to the ASX in Perth on 20 April was not seen by anyone until 26 April, and at approximately 8.00am on 26 April it was sent by the ASX in Perth to the Company Announcements Office in Sydney and was released to the market at about 10.15am that morning.

13 On 28 April 2000 the directors of the plaintiff made a statement to the ASX in which they advised that the plaintiff was about to commence legal proceedings. They also said that shareholders "should again carefully consider the matters raised in our letter to them dated 14 April 2000" and that the directors of the plaintiff would not recommend acceptance of the defendant's offer and would not themselves be accepting it.

14 There are some preliminary matters with which I can deal in fairly short order. Counsel for the plaintiff invited me to draw inferences adverse to the defendant from the timing of the various notices and the addresses to which they were sent. The suggestion is that the sending of the notice very late on the last working day before the Easter break was a deliberate ploy designed to achieve the situation that actually arose: no-one saw the advice or the notices until 26 April. Similarly, the plaintiff points to the fact that the defendant had been able to lodge the s 663 notice with the newspaper much earlier on 20 April. Again, earlier on 20 April the defendant had sent a statutory report to the office of the ASX in Sydney and that it is noteworthy that the same procedure was not followed with the s 663(8) notice.

15 All of these are valid points and I am not surprised that the plaintiff finds them curious. However, the circumstances in which the notices and advice came to be sent are set out in affidavits of Michael Cohen sworn 1 May 2000 (par 17 to par 22) and Robert Eastwood sworn 2 May 2000 (par 17 to par 19). These are explanations that I could not reject without seeing and hearing the deponents. I am reminded of the adage that hard cases make bad law. It is an unfortunate coincidence that the various time limits for the taking of steps arrived in or around the Easter break. It is compounded by the fact that in 2000 the Easter break was a day longer than usual because of Anzac Day. But this cannot affect the questions of construction or interpretation that I have to decide.

16 Counsel for the defendant urged on me that I should deny relief because there was not before the Court a plaintiff who could demonstrate real prejudice. If there was prejudice it would flow to the individual shareholders, not to the company. I think there are several answers to this submission. The matter should not be divorced from its context. Clause 8.4 entitled the company (the plaintiff) to receive notice that the condition had been waived. The plaintiff complains that this requirement was not complied with, at least in part. In addition, affidavits were filed on behalf of several shareholders voicing concerns and pointing to a possible prejudice. There is other evidence (including the affidavits of various shareholders or representatives of shareholders, of David Fawcett sworn 1 May 2000, par 4 to par 9, and of Michael Bowen sworn 1 May 2000) of considerable shareholder concern and disquiet. The directors had initially recommended the offer. They were brought to a different view because of fact that the offer was unlikely to reach the 80 per cent threshold which, I understand (without researching the point) is the minimum level which must be achieved if the scrip rollover relief is to apply. I think it is entirely consistent with the directors' fiduciary duties for them to cause the company to commence action, even if the main beneficiaries (were the action to succeed) would be the shareholders rather than the company. There may well be a point whether some shareholders ought to be joined. But it seems to me that this is a point for a later time. Given the urgency of the application I would feel uncomfortable declining relief on the basis that it was the shareholders, not the company, to whom the prejudice flowed.

17 The final preliminary point is that the plaintiff initially advanced the case on the ground (among others) that there had been a material omission from document sent to shareholders, namely the effect of the waiver of the conditions on the shareholders, particularly the taxation consequences. I indicated to the parties on 28 April that I was not particularly attracted to that ground. This is largely because when regard is had to all of the materials before the shareholders, both the possibility of the condition being waived and the importance of gaining at least 80 per cent acceptance are spelt out. The issue was not pressed at the hearing on 3 May 2000. I mention it now only to make it clear that I have not made any final or interlocutory ruling on it. The issue remains alive to be pursued by the plaintiff at a later time if it so wishes.

18 The case turns on two discrete questions which require construction of the offer and the Law. The first question is whether the advice sent by the defendant's solicitors by facsimile to the plaintiff's Belmont office was a proper compliance with cl 8.4 of the offer. This involves two alternative issues. One is whether the notice envisaged by cl 8.4 would be effective if, and only if, it were served in accordance with s 109X of the Law. The alternative is that the notice was not effectively served because it did not, as a fact, come to the attention of anyone capable of dealing with it until 26 April. The second question is whether the service of the notice by facsimile to the manager of the ASX at Perth, rather than on the Company Announcements Office in Sydney, is proper compliance with s 663 and, if not, what are the consequences. That question started life as a complaint that the notice should have been sent to Brisbane as the plaintiff's "home exchange". I think the plaintiff now accepts that the concept of a home exchange has been abandoned by rules changes and that, even though Brisbane is now nominated as the "home branch" of the ASX for the plaintiff, that would not require this particular notice to go to that office.

19 There are many sections of the Law that are relevant to the determination of these questions. However, I will only set out in full what I see as the main provisions. I should first mention s 109H, which recites that in construing the Law the construction that promotes the purpose or subject underlying the Law is to be preferred.

20 The general question of service is dealt with in s 109X:

"109X(1) For the purposes of any law, a document may be served on a company ... by:

(a) leaving it at, or posting it to, the company's registered office; or

(b) delivering a copy of the document personally to a director of the company who resides in Australia ... ; or

109X(4) For the purposes of this Law, a document may be served on an individual by:

(b) leaving it at, or posting it to, the residential or business address of the person last known to the person serving the document.

109X(6) This section does not affect the operation of a law or the power of a court to authorise a document to be served in a different way.

109X(7) This section applies to provisions of a law dealing with service whether it uses the expression "serve" or uses any other similar expression such as 'give' or 'send'".

21 There is no dispute that the plaintiff's registered office, for the purposes of s 142 and thus for this provision, is situated in Brisbane and was not the place to which the advice notice was sent. I have read par 25 of Cohen's affidavit sworn 1 May 2000. I do not think the fact, as deposed to by Cohen, that when Fawcett is in Perth he works from the Belmont office is a sufficient basis from which to draw the conclusion that this office is the "business address" of Fawcett.

22 The waiver of the conditions falls to be determined in accordance with s 663:

"663(1) Where an offeror makes a takeover offer that is subject to a defeating condition, the offeror may not, except in accordance with this section, whether expressly or impliedly and whether in writing or by conduct, declare the takeover offer or any contract resulting from the acceptance of the takeover offer to be free from the condition, and may not otherwise treat the takeover offer or any contract resulting from the acceptance of the takeover offer as being free from the condition.

663(2) Where an offer under a takeover scheme is subject to a defeating condition, the offeror may declare the offer to be free from the condition if:

(a) it is a term of the offer that the offeror may do so not less than 7 days before the last day of the offer period and the offer is declared to be free from the condition in accordance with that term; and

(b) at the same time the offeror declares all other offers under the takeover scheme, and all contracts formed by the acceptance of offers under the takeover scheme, to be free from the condition.

663(3) If an offeror declares all offers under a takeover scheme to be free from a defeating condition, the offeror shall as soon as practicable publish a notice stating that the offers are free from the condition and specifying the proportion of the number of shares in the class of shares to which the offers related to which, so far as the offeror knows, the offeror is entitled.

663(4) The offeror shall, whether or not a notice has been published under subsection (3), publish on the prescribed date a notice stating:

(a) whether the offers have been declared to be free from the condition;

(b) whether the offers have become free from the condition by the operation of subsection 664(2); and

(c) whether, so far as the offeror knows, the condition was, at the time of lodging the notice for publication, fulfilled.

663(5) In subsection (4), "prescribed date" means:

(a) the date specified in the takeover offers in accordance with par 638(5); or

(b) if the offer period has been extended as provided by Div 5 - the date that is later than the date referred to in par (a) by a period equal to the period of the extension.

663(7) A notice under subsection (3) or (4) relating to offers to acquire shares in a company must be published:

(b) if shares in the company are listed for quotation on a stock market conducted in another jurisdiction, or on 2 or more such stock markets - in each jurisdiction in which that stock market, or any of those stock markets, is conducted;

in a newspaper circulating generally in the jurisdiction concerned.

663(8) Where a notice referred to in subsection (3) or (4) is lodged for publication, the offeror shall, on the first day on which the notice is lodged for publication:

(b) if the target company is a listed company - serve a copy of the notice on that company's home stock exchange.

(a) offers made under a takeover scheme have at any time been subject to a defeating condition; and

(i) the offeror has not declared the offers to be free from the condition;

(ii) the offers have not become free from the condition by the operation of subsection 664(2); and

all contracts resulting from the acceptance of offers, and all acceptances that have not resulted in binding contracts, are void."

23 There is no dispute that cl 8.1 of the offer is a "defeating condition" for these purposes: see s 603. The term "lodge" in s 663(8)(a) means lodge with ASIC in this or any other jurisdiction: see s 9. Again, there is no dispute on this point. A copy of the notice was "lodged" in compliance with the provision. The combination of s 638(5), s 663(4) s 657 and s 658 explains the procedure by which, and dictates the timing within which, a shareholder may withdraw an acceptance in circumstances where the offer period has been extended for more than one month. As there is no dispute (except, perhaps, as to the precise date by which shareholders wishing to withdraw an acceptance were required to act, and I need not determine that question now) I need not go further into those provisions.

24 The critical question is the meaning of the phrase "subject to provisions of the Corporations Law" at the commencement of cl 8.4 of the offer.

25 Under s 638, if an offer is subject to a defeating condition a date (not less than seven nor more than 14 days before the last day on which the offer remains open) must be specified as the date for the publication of a notice declaring that the offer has become free of the condition. By virtue of s 663(1) an offeror can declare the offer free of a condition or treat it as being free of a condition only in accordance with s 663 and not otherwise. Under s 663(2) the offeror may do so if, and only if, it is a term of the offer that it may so declare and it must do so "in accordance with [the] term [of the offer]". The declaration must then be made public by the process of publication and lodging which are set out in s 663(3), s 663(4) and s 663(8). The notice is required to specify the proportion of shares to which the offeror has become entitled at the time when the notice is prepared.

26 By virtue of s 663(9) all contracts resulting from acceptance of conditional offers are void if at the end of the offer period the condition has not been fulfilled. This, of course, does not apply if the offer has been declared to be free from conditions, which can only be done strictly in accordance with s 663.

27 The apparent rationale of this scheme is to allow shareholders who are considering their position to know the extent of the control which has passed to the offeror and to make a decision in the light of that information. It also has the important consequence, where the offer has been extended, of putting a shareholder who has previously accepted the offer, in possession of information relevant to the decision whether or not to withdraw the acceptance.

28 It is, I think, somewhat curious that s 663 does not expressly require, or say anything about, giving notice of a declaration to the target company. I was referred to the National Companies and Securities Commission Release No 407 (2 July 1984) concerning the policy underlying the predecessor to s 663. As counsel for the defendant pointed out, the policy statement stresses the position of the publication as the means by which offerees are to be given information relevant to the decision-making process. However, it is a consequence of s 663(2) that a declaration that an offer is free from conditions is effective if, and only if, it is done in accordance with the provision in the offer authorising it. In this case, cl 8.4 follows closely the wording of s 663. It provides that the defendant "may declare the offers free from any of the conditions", which is wording almost identical to that used in the introductory part of s 663(2). Similarly, the second sentence of cl 8.4 mirrors, substantially, the wording of s 663(9).

29 I think, therefore, that it is true to say, as counsel for the plaintiff pressed on me, that cl 8.4 owes its very existence to s 663. But the parties have taken the precise requirements of the statute one step further. They have required that notice of the declaration be given directly to the target company as well to the shareholders and the market generally by the stipulated methods of publication and lodging. This is, I think, entirely compatible with the obvious policy considerations behind the section, namely to provide information to the market about the status of the offer, particularly the existence or non-existence of conditions. Because of the close interrelationship between s 663(2) and cl 8.4, I think that the requirement for the giving of written notice to the plaintiff is a requirement for the purposes of the Law. This brings into play the provisions of the Law generally to the extent that they are relevant and necessary for the proper implementation of the scheme. In my view, this is how the introductory phrase, "subject to the provisions of the Corporations Law" is to be understood.

30 Counsel for the defendant argued for a more restricted interpretation of those words. They did no more, counsel submitted, than recognise that the contractual right of the defendant to waive the condition (being a right that could be exercised unilaterally) was conditioned by s 663. That was the only "work" that the introductory words had to perform. Section 663 had nothing to say about the service of any documents, let alone the declaration, on the target company. But I think this overlooks the force of the imperative content of s 663(2), namely that the declaration could be made only in accordance with the relevant term of the offer. This brings the focus of attention straight back to cl 8.4.

31 However, the fact that I have concluded that the phrase "subject to the provisions of the Corporations Law" means more than simply the content of s 663 does not necessarily answer the question. It remains to be decided whether s 109X governs the way in which the communication to the plaintiff of the defendant's notice declaring the offer to be free from the condition was to be effected.

32 Counsel for the defendant submitted that the contractual provision had nothing to say about "service". It referred only to the mechanics of how the defendant would go about the process of declaring its offer free from the condition. What cl 8.4 specifies is not "service" but only some "notice in writing" with a stipulated time period of 7 days prior to the expiry of the offer. It was neither necessary nor appropriate to import into this contractual arrangement strict rules about "service" in order to enable the contractual provision to fulfil the task that was required of it.

33 In my view the stipulation in cl 8.4 that notice in writing be given to the defendant is not only a requirement for the purposes of the Law (for the reasons I have already expressed) but it is an important one. It is a mechanism by which the parties have chosen, along with the express requirements of s 663, to put into practice the underlying rationale of the statutory scheme, namely, to inform shareholders of the status of the offer. The directors of the plaintiff had previously advised shareholders and made recommendations to them. It is difficult to see the need for notice to be given to the target company other than for the purpose of allowing the directors of the target company to assess whether that process of advice and recommendation should be continued.

34 Counsel for the defendant placed some emphasis on the fact that by virtue of the letter of 14 April 2000 (posted out to shareholders on 18 April but not received by some of them until 26 or 27 April) the directors of the plaintiff had already made their recommendations to shareholders. Accordingly, the need for the notice under cl 8.4, at least for the purpose of putting the directors in a position to make a recommendation to shareholders, is lessened. Counsel suggested that the real grievance of the shareholders who had voiced concerns was in the late receipt of the plaintiff's correspondence of 14 April rather than in the anything that the defendant had done or failed timeously to do. But I think this overlooks the fact that the statutory obligation to advise shareholders of the waiver of the condition lies on the offeror under the legislative scheme. The defendant had, on 13 April, advised the plaintiff that it had not made a decision on whether to waive the condition. It gave no indication of a date by which the decision would be made. In those circumstances the plaintiff despatched its letter of 14 April to shareholders, an action that it was not obliged to do. I do not think it can be said that the cl 8.4 notice became a mere formality. If, as I have already said, the primary purpose of the notice was to put the directors of the plaintiff in a position where they could advise shareholders, that position still remained. As Bassett said in par 20 of his affidavit sworn 28 April, had he been aware on 20 April that the waiver had occurred he would have ensured that the shareholders were advised of it and that the directors intended not to accept the offer. That this may have reiterated or confirmed advice given in the letter of 14 April is, I think, not to the point. It is pure speculation, and something about which there was no evidence, but the hypothetical possibility existed that acceptances may have exceeded 80 per cent but not reached 90 per cent. If, in that situation, the defendant had waived the condition, one of the perceived barriers to successful implementation of the merger (namely, the unavailability of scrip rollover relief) would have been removed. I am not suggesting that in the circumstances as they existed, this would have caused the directors to alter their recommendation. But the potential existed and this is another reason not to deprecate the importance of the cl 8.4 notice.

35 Section 109X provides a method of service on a company where service is required "for the purposes of any law", which would, of course, include the Law. The policy behind stipulating methods of service is to minimise the risk that the communication actually comes to the attention of the entity to whom it is addressed. I note that s 109X(7) extends the concept of "service" to situations where the provision specifies that notice be "given". That is the wording of cl 8.4.

36 In my view, in the circumstances of this case, the introductory words of cl 8.4 import the provisions of s 109X. I think it is beyond doubt that the notice was not served on the registered office of the plaintiff. Section 109X(1)(a) was not complied with. On the factual material before me I do not think it can be said that it was delivered personally to a director ordinarily residing in Australia in accordance with s 109X(1)(b) and s 109X(4)(b).

37 It is to be noted that s 109X does not purport to be an exclusive code: see s 109X(6). However, there is no suggestion that there is a law or court order providing an alternative means of service. Nor does the offer provide for an alternative means of service. But the section is facultative rather than mandatory and does not exclude other means of service: Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542 at 544. In that case Young J pointed out, also at 544, that the ordinary meaning of service is personal service, which imports the notion that the document in question must come to the notice of the person for whom it is intended.

38 The next question is whether the document was served by a means other than those provided for in s 109X. The argument advanced by the defendant is that the notice was effectively served by the facsimile transmission of 20 April 2000. There is no dispute that a facsimile transmission can be good service. Young J held it to be so in Howship Holdings. Decisions to the same effect include Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) [1996] FCA 1789; (1996) 69 FCR 531 and NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26.

39 In Bank Leumi the Full Court of the Federal Court held that the giving of a secondary notice under s 717 by facsimile transmission was effective. Lehane J, with whom Lockhart and Foster JJ agreed, made it clear, at 550, that time limits and obligations consequent on the giving of notice are enlivened, when the notice is given by fax, only upon the actual receipt of the notice in full and legible form. This is in accord with the views expressed by Young J in Howship Holdings that the document in question must come to the notice of the person for whom it is intended. There would be little point in insisting on the fax being "full and legible" if, regardless of whether anyone actually saw it or tried to read it, mere arrival at the receiving facsimile machine completed the act of service.

40 In NM Superannuation, Cohen J held that where modern forms of communication are used and equipment is kept available for the receipt of messages, service by that medium will be sufficient notwithstanding that the message may arrive outside normal business hours. The "modern forms of communication" referred to in that case were fax transmissions. This case was relied on by the defendant for the submission that because the plaintiff's facsimile machine was left on (and the evidence discloses that it was) the plaintiff was effectively holding out that it was open to service by these means. However, Cohen J noted that there was no evidence that no one was at the office of the recipient at the relevant time. His Honour said that he was not prepared to take judicial notice that people are not normally at work after normal working hours. He went on to say, at 37:

"It may well be in appropriate circumstances that evidence could be given that notwithstanding that a facsimile machine is left in operation there was nobody in the office to receive the message until the following day but that is not the case here."

41 While this is strictly obiter, it is a comment with which I respectfully agree. I am tempted to make the gratuitous comment that nobody who has been in legal practice would ever take judicial notice that the working day ends at the expiration of normal working hours. But I am not required to take judicial notice. I have clear evidence that at 5.00pm on 20 April nobody was in the Belmont office and nobody saw the facsimile transmission until the morning of 26 April. I should add that the decision of Cohen J was affirmed on appeal but I do not think this particular issue was considered: Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653.

42 Acting on the principle that service in that sort of format occurs when the communication actually comes to the attention of the addressee, it was received on 26 April. That would be outside the time limit prescribed by cl 8.4. For these reasons, I do not think that the sending of the notice by facsimile to the Belmont office on 20 April was good service in accord with the facultative aspects of s 109X.

43 The plaintiff advanced an alternative argument. Even if s 109X does not govern the way in which the cl 8.4 notice was to be given, the communication must, to be effective be brought to the attention of the addressee. Counsel for the plaintiff relied on cases such as Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd (1958) 3 All ER 7 at 12 and Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342 at 353. Counsel also relied on the so-called "ticket cases", for example, Fosbroke-Hobbes v Airwick Ltd (1937) 1 All ER 108. I am not sure that the ticket cases provide much assistance. As counsel for the defendant pointed out, there is a wealth of difference between the formation of a contract and the identification of the terms of a contract on the one hand and, on the other hand, the means by which one party notifies another of the unilateral exercise of a right that is clearly a term of the contract.

44 However, the evidence is that the means of communication adopted for the critical notice was different from the means customarily adopted during the course of dealings concerning this takeover. The circumstances were such that there was a substantial risk that the communication might not actually come to the attention of the addressee. In these circumstances, had the plaintiff been forced to rely on the more general alternative argument, I would have upheld it.

45 In my view the notice did not comply with cl 8.4. Accordingly, the purported waiver of the condition does not comply with s 663 and the offer remained conditional. On 30 April it lapsed with the consequences provided for in s 663(9). The plaintiff is entitled to the relief it seeks.

46 I will deal more briefly with the plaintiff's complaint that the defendant failed to comply with s 663(8)(b) by sending the copy of the notice for publication to the Perth office of the ASX rather than to the Company Announcements Office in Sydney.

47 Section 663(8)(b) says that the copy of the notice should be served on the company's "home stock exchange". Section 603 defines that term to mean "the stock exchange designated to the body for the purposes of the listing rules of the Exchange ... as the body's home exchange". Listing r 19.11 formerly provided that for the purposes of the Law, the ASX was the home exchange for all entities. However, by amendments that came into effect in March 2000 and which, it is common ground, apply to this takeover, r 19.11 was deleted. There is, in ch 19 of the listing rules, a definition of "home branch", namely the branch of the ASX designated to the entity by the ASX as the entity's home branch. In the case of the plaintiff the home branch is the Brisbane office of the ASX.

48 Section 663 reproduces s 28 of the Companies (Acquisition of Shares) Code. In other words, it has been part of the statute law governing corporate regulation for a long time. At the time when the Companies (Acquisition of Shares) Code was in force and when the Law was introduced the listing rules of the ASX provided for home exchanges and for the lodgment of documents at the home exchange. The listing rules were amended in July 1995 to accommodate the introduction of the "Company Announcements Platform". It was at this time that the predecessor to r 19.11 was introduced, as was the deletion of the term "home exchange" and the insertion of the term "home branch".

49 In my view it cannot be said that the reference in s 663(8)(b) to a "home exchange" can now be taken to be a reference to the "home branch". That was not the way it was treated in the July 1995 amendments to the listing rules and, in my view, it would require some legislative change. Either s 663(8)(b) has no meaning at all or it is to be interpreted, in accordance with s 109H, so as to promote the purpose or subject underlying the Law. The purpose underlying this aspect of the Law is to provide a mechanism for the release of information to the market. I think it is consistent with that purpose to interpret s 663(8)(b) as requiring service on the ASX.

50 The next question is: what does that mean? Listing r 15.2 specifies what is to happen when an entity is required to give a document to the ASX. It then depends on the nature of the document. Relevantly, r 15.2.1 provides that a document is to be given to the Company Announcements Office if it is to be released to the market. Rule 15.2.2 provides that a document is to be given to the home branch if it is not for release to the market.

51 The contractual status of the listing rules is well known. So, too, is the fact that there is a statutory obligation on a company that is included in the official list of the ASX to comply with the listing rules: s 777(2).

52 In my opinion, the s 663 notice was a document for release to the market. Accordingly, under r 15.2.1 the defendant was under an obligation to give it to the Company Announcements Office. It did not do so. The question is what, if anything, flows from that failure.

53 Not every non-compliance with the listing rules will render the action or purported action invalid or ineffective. It is much more complex than that. However, the discussion in the previous section of the interrelationship of s 663(8) and cl 8.4 and the pivotal importance of the whole question of waiver of the minimum acceptance condition applies with equal force here.

54 Counsel for the defendant submitted that the sending of the notice to the ASX was a "pure formality" and that the specified medium of disseminating information to the market was the publication of the notice in the newspaper. I am not sure that this is correct. It is to be noted that the time at which the notice is to be given to the ASX is "the first day on which the notice is lodged for publication". In other words it is likely that the notice will be received by the ASX before it actually appears in the newspaper. It is apparent from the affidavit of Cameron Belyea sworn 3 May 2000 that the Company Announcements Office acted with considerable expedition in releasing the information contained in the s 663 notice to the market and it can be inferred that this is in accordance with its usual practice. Indeed, such a practice is in accordance with r 15.7.

55 In my opinion, it is not correct to say that the giving of the s 663 notice to the ASX is a mere formality doing little more than complete the process of informing the market by means of the newspaper publication. It can be assumed that s 663(8) was enacted with the procedures of the stock exchange for release of information in mind. I think that s 663(8) provides an integral and important role in the entire process of disseminating information to the market which the statutory scheme envisages.

56 There was, in my view, a failure to comply with s 663(8). It was a failure which reduced to, at most, a few hours the period within which shareholders accustomed to obtaining information from the sources mentioned in the Belyea affidavit, could digest the information and act on it. I do not think the problem is cured by the fact that the publication of the notice in the newspaper occurred on 22 April 2000. In the context of this case, I think it was necessary to comply with all facets of the information release scheme.

57 It follows that the plaintiff is entitled to relief on this basis also.

58 It is a consequence of s 663(9) that once the offer period expires without the defeating condition having been fulfilled or effectively waived, all contracts resulting from the acceptance of offers, and all acceptances that have not resulted in binding contracts, are void. Looked at in that light, it is difficult to see how balance of convenience arguments could be decided other than in favour of granting injunctive relief.

1. Until trial or further order the defendant, whether by itself, its officers, servants, agents or otherwise, be restrained from requesting or completing the transfer of shares or otherwise dealing with the shares received from the plaintiff's shareholders who have accepted the offer made by the defendant to the plaintiff's shareholders dated 11 February 2000 as extended from time to time.

2. The costs of this application and the application made on 28 April 2000 be in the cause.

60 Unless either party seeks, before 12 noon on Friday 12 May 2000, to have the matter relisted for other orders to be made, those orders will be taken to have been made on 12 May 2000.