mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ring Row Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306
Outcome: cited
Lord Dunedin's speech was recently followed in the High Court in Ring Row Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306, subject to the caveat at 309. 442 At the time that the Executive Service Agreement was entered into the first respondent was a chartered accountant in full-time employment which was apparently available to him for the foreseeable future. 443 The applicant was liable under clause 13.1(b) of the Executive Service Agreement to pay the full amount of the first respondent's remuneration package unless the contract of employment was terminated for illness, poor performance, including summary termination, or if the company ceased to trade.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: cited
The two documents under consideration (the circular resolution and the Executive Service Agreement) must be construed in accordance with the principles laid down by the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165. The principles which may be extracted from those decisions are: 1. The subjective beliefs or understanding of the contracting parties are irrelevant. 2. The rights and liabilities of the parties to a contract will be determined by reference to the objective intention of the parties. 3. The common intention of the parties will be discerned by considering what a reasonable person would understand the parties to have intended to have meant by the terms. 4. The documents will be construed having regard to the purpose and object of the commercial transactions. 5. Reference must be made to the text and the context of the terms under consideration. 6. Reference should be had to the surrounding circumstances known to the parties.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088
Outcome: referred to
There can be no doubt, as the appellant submitted, that the Tribunal was required to review the delegate's decision (s 414) and a failure by the Tribunal to deal with a "substantial, clearly articulated argument relying on established facts" made by an applicant will constitute jurisdictional error because it constitutes a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at 1092 [24] - [25] per Gummow and Callinan JJ. A judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at 22 [68].
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Outcome: referred to
The Federal Magistrate referred to the Tribunal's reasons and the respective submissions of the parties. He referred to authorities ( Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1) (" NABE ") which had considered whether a failure to deal with a claim amounted to jurisdictional error.
Case: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 74 ALJR 405
Outcome: referred to
As the Minister submitted, there is a question as to whether this case really raises an issue of relocation. If, on the Tribunal's findings, the appellant had a well-founded fear of persecution in Nigeria it was only if he resided in Kano or perhaps other cities or towns in the northern part of Nigeria. He had not done that for about three years prior to his departure from Nigeria. He had a certificate stating that he is a native of Ibadan in Oyo State and the Tribunal member found that there was no reason for him to return to Kano or any of the other northern Islamic states. It is fairly arguable that Kano is not part of the appellant's home area ( Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 74 ALJR 405 at 410-411 [27] - [28] .
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: referred to
The Federal Magistrate referred to the Tribunal's reasons and the respective submissions of the parties. He referred to authorities ( Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1) (" NABE ") which had considered whether a failure to deal with a claim amounted to jurisdictional error. 29 There can be no doubt, as the appellant submitted, that the Tribunal was required to review the delegate's decision (s 414) and a failure by the Tribunal to deal with a "substantial, clearly articulated argument relying on established facts" made by an applicant will constitute jurisdictional error because it constitutes a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at 1092 [24] - [25] per Gummow and Callinan JJ. A judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at 22 [68].
Case: NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Outcome: referred to
The appellant's third and final submission was that in considering relocation the Tribunal member failed to consider the appellant's symptoms of post-traumatic stress and the difficulties he would experience in terms of relocation in view of those symptoms. I was referred to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCA 3 ; (2006) 150 FCR 448.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: referred to
As the Minister submitted, there is a question as to whether this case really raises an issue of relocation. If, on the Tribunal's findings, the appellant had a well-founded fear of persecution in Nigeria it was only if he resided in Kano or perhaps other cities or towns in the northern part of Nigeria. He had not done that for about three years prior to his departure from Nigeria. He had a certificate stating that he is a native of Ibadan in Oyo State and the Tribunal member found that there was no reason for him to return to Kano or any of the other northern Islamic states. It is fairly arguable that Kano is not part of the appellant's home area ( Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 74 ALJR 405 at 410-411 [27] - [28] .
Case: SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 ; (2006) 150 FCR 448
Outcome: referred to
The appellant's third and final submission was that in considering relocation the Tribunal member failed to consider the appellant's symptoms of post-traumatic stress and the difficulties he would experience in terms of relocation in view of those symptoms. I was referred to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCA 3 ; (2006) 150 FCR 448.
Case: SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659
Outcome: referred to
The High Court recently considered the issue of relocation in SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659. The appellant was a journalist in the Ukraine. He had a well-founded fear of persecution in the city of Chernovtsy. However, the Tribunal held that he could relocate within the Ukraine if he avoided working as a journalist. The High Court said that the Tribunal's approach involved an error of law. Gummow, Hayne and Crennan JJ said (at 1665-1666 [32]): The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine, and live "discreetly" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his "relocation" in Ukraine. It presents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was "well-founded" in the Convention sense and thus for the purposes of s 36(2) of the Act .
Case: Re APN News &amp; Media Ltd (2007) 62 ACSR 400
Outcome: referred to
I discussed break fees and other "deal protection" measures, notably "no shop" or exclusivity period provisions, in Re APN News &amp; Media Ltd (2007) 62 ACSR 400 ( APN ) at [25] [55] and to a lesser extent in Re Investa Properties Ltd (2007) 25 ACLC 1186 at [31] [35], and will not repeat what I said in those cases. Generally, a break fee is a fee payable by the target company to the acquiring company in certain circumstances in which the acquisition is not implemented. Such provisions form part of a merger implementation agreement to which the directors of the target company commit their company prior to a scheme of arrangement being considered by the target company's shareholders. When deciding whether to order that a meeting be convened or that a scheme be approved, the Court is not in a position to decide whether a merger implementation agreement was entered into in breach of the duties owed by the target company's directors. The Court could do so only on a contested hearing in which it is alleged, and sought to be proved, that by committing the target company to the merger implementation agreement, the directors breached their statutory and general law duties: see eg, Idameneo (No 123) Pty Ltd v Symbion Health Limited [2007] FCA 1832. 16 The United Kingdom, like Australia, has legislative provision for judicial approval of schemes of arrangement: Companies Act 2006 (UK) c 46, Pt 26 (ss 895 901). There, as here, there is also a specialist takeover panel (the Panel on Takeovers and Mergers) and an associated administrative document containing guidance as to an acceptable level of break fee in the context of takeovers: The City Code on Takeovers and Mergers (8 th ed, Panel on Takeovers and Mergers, 2006) and the Panel's Practice Statement No 4, r 21.2 regarding inducement fees, the effect of which I summarised in APN 62 ACSR 400 at [46]. 17 The researches of Bolnisi's counsel did not elicit anything of specific relevance to naked no vote break fee provisions from the United Kingdom. 18 In New Zealand, Part XV of the Companies Act 1993 (NZ) (ss 235 239) also provides for judicial approval of schemes of arrangement. However, solicitors for Bolnisi informed the Court that Bolnisi's New Zealand counsel advised that the Takeovers Panel in New Zealand had not had to consider the issue of naked no vote break fees, or break fees more generally.
Case: Re Ausdoc Group Ltd (2002) 42 ACSR 629
Outcome: cited
Two decisions of the Takeovers Panel are relevant. In Re Ausdoc Group Ltd (2002) 42 ACSR 629 a break fee was payable, inter alia, where a 90 percent minimum acceptance condition of a takeover offer was not satisfied. The Panel found the break fee provision to be unacceptable and accepted undertakings by the bidder and the target company not to enforce the provision or to pay the fee, respectively. The Panel stated (at [44]) that: "In assessing the potential for the 90% break fee to influence the decision of Ausdoc shareholders, we had regard to the fact that ... [t]he 90% break fee represents approximately 42% of [that year's] expected profit figure". The Panel had regard to the fact that payment of the break fee would mean that shareholders would not be paid a dividend for the year. The Panel accepted ASIC's submission that the break fee provision was coercive, that naked no vote break fees are to be distinguished from others, and that in the particular circumstances of the case, only a de minimis naked no vote break fee could be supported. 15 For the purposes of assessing a particular break fee, I see no distinction between the 90 percent minimum acceptance condition in Re Ausdoc Group Ltd 42 ACSR 629 and the minimum voting percentages referred to in s 411(4)(a)(ii) of the Act. The approach taken by the Panel in Re Ausdoc Group Ltd 42 ACSR 629 may have been influenced by the size of the break fee in question. Be this as it may, the view expressed in Re National Can Industries (No 1) is inconsistent with any notion that a naked no vote break fee can only be supported if it is de minimis . Overseas comparisons
Case: CW Shareholdings Inc v WIC Western International Communications Ltd (1998) 38 BLR (2d) 196
Outcome: cited
As in the US, judicial consideration of break fees by Canadian courts often occurs in the context of contested litigation. Canadian courts have upheld break fees generally: see CW Shareholdings Inc v WIC Western International Communications Ltd (1998) 38 BLR (2d) 196. I was informed that counsel for Bolnisi's Canadian subsidiary company, Palmarejo, conducted a survey of plans of arrangement undertaken in Canada in 2007 and found that many included a naked no vote break fee. The evidence before the Court relevant to the naked no vote break fee in the present case 31 Bolnisi relies on the following three affidavits. The first is an affidavit of Norman Alfred Seckold, Chairman and a Director of Bolnisi, sworn 25 October 2007, paras 22 27 of which were set out in my earlier reasons for judgment (at [25]) and are summarised at [39] below. 32 The second affidavit is a further affidavit of Mr Seckold sworn 13 November 2007 in which Mr Seckold states that the terms of the MIA were negotiated at meetings on 4 April 2007 and 2 May 2007, and that at one of those meetings a partner from Freehills, representing Coeur, told him that Coeur would not enter into a transaction with Bolnisi unless Bolnisi agreed to pay a break fee triggered by a failure of its shareholders to vote to agree to the proposed Scheme. Mr Seckold stated that he agreed subject, inter alia, to Coeur's agreeing to a reciprocal break fee provision, because without it, it would be open to Coeur shareholders to frustrate implementation of the Scheme by not passing the resolution to increase the number of the authorised shares in the capital of Coeur. Mr Seckold states that he took the view that without the provision for the Coeur break fee, the Coeur shareholders would have "a free option over the scheme".
Case: Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996)
Outcome: cited
In several cases, the Delaware Court of Chancery has made passing reference to naked no vote break fees without suggesting disapproval: see Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996) at 9; Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000) at 104; and McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000) at 505. In HF Ahmanson &amp; Co v Great Western Financial Corp CA 15650 (Del Ch 1997) that Court upheld a 3 percent break fee notwithstanding that half of that break fee remained payable in the naked no vote situation. In Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993) a US$100 million break fee was payable, inter alia, in the naked no vote situation. However, the Supreme Court of Delaware held that, in the circumstances of that case, the break fee and the other lock-up arrangements were unreasonable and "draconian", and affirmed the decision of the Court of Chancery that the company's directors had breached their fiduciary duties.
Case: HF Ahmanson &amp; Co v Great Western Financial Corp CA 15650 (Del Ch 1997)
Outcome: cited
In several cases, the Delaware Court of Chancery has made passing reference to naked no vote break fees without suggesting disapproval: see Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996) at 9; Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000) at 104; and McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000) at 505. In HF Ahmanson &amp; Co v Great Western Financial Corp CA 15650 (Del Ch 1997) that Court upheld a 3 percent break fee notwithstanding that half of that break fee remained payable in the naked no vote situation. In Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993) a US$100 million break fee was payable, inter alia, in the naked no vote situation. However, the Supreme Court of Delaware held that, in the circumstances of that case, the break fee and the other lock-up arrangements were unreasonable and "draconian", and affirmed the decision of the Court of Chancery that the company's directors had breached their fiduciary duties.
Case: Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000)
Outcome: cited
In several cases, the Delaware Court of Chancery has made passing reference to naked no vote break fees without suggesting disapproval: see Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996) at 9; Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000) at 104; and McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000) at 505. In HF Ahmanson &amp; Co v Great Western Financial Corp CA 15650 (Del Ch 1997) that Court upheld a 3 percent break fee notwithstanding that half of that break fee remained payable in the naked no vote situation. In Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993) a US$100 million break fee was payable, inter alia, in the naked no vote situation. However, the Supreme Court of Delaware held that, in the circumstances of that case, the break fee and the other lock-up arrangements were unreasonable and "draconian", and affirmed the decision of the Court of Chancery that the company's directors had breached their fiduciary duties.
Case: Re Investa Properties Ltd (2007) 25 ACLC 1186
Outcome: cited
I discussed break fees and other "deal protection" measures, notably "no shop" or exclusivity period provisions, in Re APN News &amp; Media Ltd (2007) 62 ACSR 400 ( APN ) at [25] [55] and to a lesser extent in Re Investa Properties Ltd (2007) 25 ACLC 1186 at [31] [35], and will not repeat what I said in those cases. Generally, a break fee is a fee payable by the target company to the acquiring company in certain circumstances in which the acquisition is not implemented. Such provisions form part of a merger implementation agreement to which the directors of the target company commit their company prior to a scheme of arrangement being considered by the target company's shareholders. When deciding whether to order that a meeting be convened or that a scheme be approved, the Court is not in a position to decide whether a merger implementation agreement was entered into in breach of the duties owed by the target company's directors. The Court could do so only on a contested hearing in which it is alleged, and sought to be proved, that by committing the target company to the merger implementation agreement, the directors breached their statutory and general law duties: see eg, Idameneo (No 123) Pty Ltd v Symbion Health Limited [2007] FCA 1832.
Case: McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000)
Outcome: cited
In several cases, the Delaware Court of Chancery has made passing reference to naked no vote break fees without suggesting disapproval: see Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996) at 9; Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000) at 104; and McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000) at 505. In HF Ahmanson &amp; Co v Great Western Financial Corp CA 15650 (Del Ch 1997) that Court upheld a 3 percent break fee notwithstanding that half of that break fee remained payable in the naked no vote situation. In Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993) a US$100 million break fee was payable, inter alia, in the naked no vote situation. However, the Supreme Court of Delaware held that, in the circumstances of that case, the break fee and the other lock-up arrangements were unreasonable and "draconian", and affirmed the decision of the Court of Chancery that the company's directors had breached their fiduciary duties.
Case: Re National Can Industries (No 1) (2003) 48 ACSR 409
Outcome: cited
In Re National Can Industries (No 1) (2003) 48 ACSR 409 the Panel stated (at [42]) that it did "not entirely reject the notion that a fee should be payable if and when a proposal the directors have endorsed is rejected by shareholders", and that "[a]s GN7 put it, such a fee may be an appropriate price to secure an opportunity broadly in the nature of an option" [the reference to GN7 is a reference to the Panel's Guidance Note No 7: Lock-up Devices ]. Later, at [51], the Panel again referred to the naked no vote break fee as "in effect the price paid to secure the opportunity for shareholders to consider the proposal". The review Panel (at [33]) expressly agreed with the former statement by the original Panel. 15 For the purposes of assessing a particular break fee, I see no distinction between the 90 percent minimum acceptance condition in Re Ausdoc Group Ltd 42 ACSR 629 and the minimum voting percentages referred to in s 411(4)(a)(ii) of the Act. The approach taken by the Panel in Re Ausdoc Group Ltd 42 ACSR 629 may have been influenced by the size of the break fee in question. Be this as it may, the view expressed in Re National Can Industries (No 1) is inconsistent with any notion that a naked no vote break fee can only be supported if it is de minimis . Overseas comparisons
Case: Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993)
Outcome: cited
In several cases, the Delaware Court of Chancery has made passing reference to naked no vote break fees without suggesting disapproval: see Emerson Radio Corp v International Jensen Inc 1996 WL 483086 (Del Ch 1996) at 9; Hills Stores Co v Bozic 769 A2d 88 (Del Ch 2000) at 104; and McMillan v Intercargo Corp 768 A2d 492 (Del Ch 2000) at 505. In HF Ahmanson &amp; Co v Great Western Financial Corp CA 15650 (Del Ch 1997) that Court upheld a 3 percent break fee notwithstanding that half of that break fee remained payable in the naked no vote situation. In Paramount Communications Inc v QVC Network Inc 637 A2d 34 (Del Supr 1993) a US$100 million break fee was payable, inter alia, in the naked no vote situation. However, the Supreme Court of Delaware held that, in the circumstances of that case, the break fee and the other lock-up arrangements were unreasonable and "draconian", and affirmed the decision of the Court of Chancery that the company's directors had breached their fiduciary duties.