· there was thus no "correspondence" of the acceptance with the offer in the sense required by law."
114 The defendant put these submissions in the suggested following context:
· "There were at least two ways that the plaintiff could have avoided the situation of attempting to accept not knowing the registration number of the rights which it had purchased, and at least two ways that it could have accepted once it found itself in that situation.
· The situation could have been avoided, firstly by having the rights placed on the CHESS subregistry (which would have required a sponsorship agreement to have been entered into between the plaintiff and SSB). This would have been the safest way, as a HIN would have been generated immediately, and acceptance of the Mongoose offer would have taken place through CHESS. Alternatively, the broker could have taken steps to ensure that the rights were placed by ANL's share registry on the SRN already allocated. The broker ought to have advised the plaintiff on these options, and on the risk of not taking them.
· Even so, given the situation in which the plaintiff found itself, it could have effected a valid acceptance in one of two ways: firstly, and preferably, it should have been given an Appendix E by its broker, and sent it with the acceptance form, as required by the participant bulletin. Alternatively, if it had simply left the SRN field blank and inserted the name of SSB as stockbroker, it would have complied with the instructions of the form and the acceptance would have been effective.
· The evidence is that Appendix E is the standard method used for exercising rights purchased on-market during the exercise period. From this, it may be inferred, it is regarded as evidence that the person named therein has the entitlement to the rights, and that is why the participant bulletin requires it to accompany the acceptance form. In this regard the Appendix E has information not contained in a buy contract note, in particular the CHESS Transaction IDs, which would permit validation by those with access to CHESS. If an Appendix E had been sent with a rights acceptance form, then, as the bulletin stated, the communication would be treated by Mongoose's agent as a valid acceptance.
· The one thing which the plaintiff could not do to effect a valid acceptance, in the defendant's submission, was the precise thing which it did, namely insert the identifying number for a parcel of rights for which it had already accepted. On the objective interpretation required by contract law, the plaintiff was attempting to accept an offer which was no longer open because it had already been accepted.
· The objective interpretation requires an interpretation from the standpoint of a reasonable person in the position of the offeror, or as in the case, in the position of an agent appointed by the offeror to receive acceptances. That agent was a share registry with a number of staff which received about 800 acceptances. A person wishing to accept was required to comply with rules which were necessary to allow the registry staff to "process" forms - meaning, to make a decision in each case as to whether the acceptance was valid, or defective in such a way as to be returned to the rightsholder to be fixed, or invalid. It appears that there were instances of rightsholders sending in duplicate acceptance forms - presumably to make sure that their form had reached its destination. ASX Perpetual adopted a practice whereby if a form purported to accept for holding under an SRN which had already been accepted, it was treated as a duplicate. That was a reasonable practice to adopt in the circumstances.
· The plaintiff made a number of mistakes throughout. Mr Grant failed to include the ANL entitlement form with the first rights acceptance form which he posted on 10 February, which was a breach of acceptance instructions. He included a copy of that ANL entitlement form for the previous holding with his fax of 11 February enclosing the buy contract note for the 55,000,000 rights, (TB pages 335-337), implying that those two documents related to the same parcel, which they did not. Ms Ooi's evidence is that she asked him to fax an Appendix E form, which he did not do. He wrote an SRN on the second acceptance form which related to the rights for which he had accepted the previous day by posting the first acceptance form.
· In the defendant's submission there was no contract formed in these circumstances. "
115 Clearly enough it is true to say that what was returned by Redowood by way of its second rights acceptance form, although signed, did not conform with the "[h]ow to accept the offer" instructions [received with the first rights acceptance form] for two reasons:
· the name of the stockbroker who had acted for Redowood upon its recent purchase of the 55,000,000 rights parcel was not included-an omission; and
· the form as completed gave an incorrect SRN number - an error.
116 It cannot be suggested that the failure to forward another copy of the "[h]ow to accept the offer" reverse side with the facsimile second rights acceptance form is of any materiality.
117 My own reading of clause 8.4 (a) (i) and (ii) of the Mongoose rights offer document is that it deals with two different situations as follows:
Situation 1 The circumstance where the offeree has completed (ie completed correctly, without omission and without error) the rights acceptance form and has signed and returned it to the offeror. In this situation the offeree has accepted the offer in respect of its ANL rights;
Situation 2 The circumstance where the offeree has signed and returned the rights acceptance form which contains errors and/or omissions. In this situation the offeree has not accepted the offer in respect of its ANL rights.
118 A further question is as to whether in situation 2, the offeree can be said to have become a party to a separate contract with the offeror imposing any, and if so what form of, obligations upon the offeror, which obligations flow [whether by a construction or implied term route] from the offeree having, in these particular circumstances, authorised the offeror to correct errors in, and to complete omissions from, the rights acceptance form necessary to make it an effective acceptance of the offer or to enable the registration of the transfer of the rights to the offeror. The field of discourse is akin to that which has given rise to the principle that, in a competitive tender context, the person calling for tenders may be contractually obliged to follow the rules set out in the call for tenders. In short, this is where the tender process itself can constitute a discrete contract even if there is no promise to accept the most favourable tender: cf Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151; Carter on Contract [03-080].
119 There are two possible answers to the question posed in the previous paragraph:
· Answer 1 Such a contract has been entered into:
- it was entered into because the proper construction of the Mongoose rights offer [clause 8.4 (a) (i) and (ii)] is that, if Redowood delivered to Mongoose a rights acceptance form which required correction of errors in, and/or completion of omissions from, the form [which correction/completion was necessary to make it an effective acceptance of the offer or to enable the registration of the transfer of ANL rights to the offeror] Mongoose would take such steps as were reasonably able to be taken by it to correct such errors and to complete such omissions; and
- that offer was accepted, and the consideration supplied, by Redowood when it submitted the second rights acceptance form requiring correction of errors and/or completion of omissions; or
· Answer 2 No such contract has been entered into
- no such contract was entered into because all that Redowood has done is to authorise the correction of errors and/or the completion of omissions.
120 The question is one of real difficulty. However, the matter albeit addressed in part [defendants submissions paragraphs 3 and 4] was not pleaded in terms of any such separate contract. Any such pleading would have required to plead causation and to claim damages for breach. Questions of implication would have had to be the subject of detailed submissions. Notwithstanding these matters, it has to be said that a conclusion may well have been reached in terms of answer 1. Certainly it is the case that it is plain on the evidence that had Mongoose taken the steps which were reasonably able to be taken by it to correct the errors in, and to complete the omissions from, the second rights acceptance form, by reference to and clearly aided by the contract buy note, it would have been in a position to process that form. It would clearly, by reference to the copy ANL register up-to-date as at 12 February 2003, received by it on 13 February 2003, have been able to authenticate the subject rights holding.
121 The offer and acceptance case fails because what was returned by Redowood by way of its second rights acceptance form simply did not conform with the Mongoose rights offer document. It failed to furnish the name of the stockbroker who had acted for Redowood upon its recent purchase. Further, it gave an incorrect SRN number. The materiality of the proper supply of the necessary information had been pointed up in the "[h]ow to accept the offer" instructions: