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High Court of Australia |
AUSTRALIAN CONSOLIDATED PRESS LTD. v. AUSTRALIAN NEWSPRINT MILLS HOLDINGS LTD.
[1960] HCA 53; (1960) 105 CLR 473
Companies
High Court of Australia
Dixon C.J.(1), Fullagar(2), Menzies(2) and Windeyer(3) JJ.
CATCHWORDS
Companies - Offer to purchase all shares in one company by another - "Scheme involving the transfer of shares" - "Scheme" - Offer made in writing to all shareholders - Approved by holders of nine-tenths in value of all shares - Power of offeror company to acquire shares of dissentient minority shareholders - Period during &which offer must remain open for acceptance - Shares divided into ordinary, preference and grouped shares - Whether holders of nine-tenths in value of shares in any one group must approve before scheme effective - "Shares affected" - Companies Act 1920-1957 (Tas.), s. 130B (1).*
HEARING
Hobart, 1960, March 3, 4;DECISION
August 10.2. For s. 130B to operate there must be "a scheme or contract involving the transfer of shares or any class of shares in a company to another company." The first point made in support of the appeal is that there was no scheme or contract: nothing but an offer to take transfers of shares. Then the section requires that "within a period of four months after the making of the offer in that behalf by the transferee company" (the description which the section gives to the company taking the shares) the scheme or contract must "have been approved by the holders of not less than nine-tenths in value of the shares affected". The second point made for the appellant is that the offer limited a period less than four months and, although within the period limited holders of ninety per cent of the shares in value accepted by making a transfer yet the offer was bad for limiting a period less than four months. In the third place some of the shares in the so-called transferor company were divided into groups - A to F. The holders of less than ninety per cent in value of the shares of group F approved and it was argued that it was not enough that the holders of ninety per cent of all the shares in the company approved; there must be an approval of ninety per cent in group F, which formed a "class" because, so it was said, classes of shares must separately provide the requisite majority of ninety per cent, otherwise the provision was not satisfied. (at p476)
3. If and when the conditions prescribed by the section are fulfilled, an event which, as will be seen from the foregoing, the appellant company says has not occurred, then the transferee company may at any time within a period of two months after the expiration of the first mentioned period (of four months) give notice to any dissenting shareholder that it desires to acquire his shares. If that notice is given, then the dissenting shareholder must apply within a month to the Supreme Court for an order to the contrary and if he does not so apply the transferee company becomes not only entitled but bound to acquire the shares; the terms of acquisition are to be the same as those upon which under the scheme or contract the shares of the approving shareholders are to be transferred to the transferee company. (at p476)
4. The appellant here is the Australian Consolidated Press Ltd. That company is a shareholder in Australian Newsprint Mills Ltd. It holds shares of group F and it also holds ordinary shares. Australian Newsprint Mills Ltd. was incorporated under the laws of Tasmania in 1938 with objects appropriate for carrying on the business of manufacturing, purchasing and supplying newsprint, wood pulp and other paper pulp and manufacturing and dealing in articles made of paper or pulp and so on. By its articles of association provisions were made for grouping shares. The shares of each group were specified by the numbering they bore and the groups were named A, B, C, D, E and F. The groups varied markedly in the number of shares they respectively contained. There were restrictions on the transfer of group shares and to each group was attached a right to be represented on the board of directors. The holders of the shares in group A were entitled to two representatives on the board; each of the other groups to one. There was a special provision as to group F. The holders of shares in that group were to be entitled to one representative on the board if and so long as no shareholder holding a majority of the shares in group F also held a share in any other group (articles 4 (b): 19, and 88). The shares in group F were held by the appellant (Australian Consolidated Press Ltd.), by the Argus and Australasian Ltd. and by the Herald and Weekly Times Ltd. But the Argus and Australasian Ltd. which held the greatest number of shares of group F became a subsidiary of the Herald and Weekly Times Ltd. and that company held the group A shares. Thereupon the director representing group A shares resigned on the footing that the special provision governed the position so arising and in accordance with that view his place has not been filled. (at p477)
5. On 29th May 1958 the Australian Newsprint Mills Holdings Ltd. was incorporated under the laws of Tasmania. That company is the respondent in the appeal, and in the transaction with which the appeal is concerned it is what s. 130B calls the "transferee company". On 2nd June 1958 an extraordinary meeting of Australian Newsprint Mills Ltd. (the "transferor company") adopted resolutions reorganizing capital and amending the articles. By an amendment of the articles it was provided that any share might be transferred to Australian Newsprint Mills Holdings Ltd. (the respondent). On 7th October 1958 to remove doubts the resolutions of 2nd June 1958 were adopted as special resolutions. By a circular notice dated 18th November 1958 addressed as an offer to holders of shares of Australian Newsprint Mills Ltd. (i.e. the "transferor company"), Australian Newsprint Mills Holdings Company Ltd. (i.e. the "transferee company") offered to purchase from the respective holders the whole of the issued shares in the former company. The issued shares included preference shares, which differed in denomination from other shares, grouped shares and ordinary shares. The terms were stated by the offer and they included a condition that on or before 15th December 1958, or such later date as the Holdings Company (the "transferee") might notify, there should be an acceptance by the holders of ninety per cent of the issued shares in Australian Newsprint Mills Ltd. (the transferor company). Further the notice stated as one of the conditions that in order to accept the offer an enclosed form of transfer must be completed in accordance with directions printed thereon. (at p478)
6. The appellant did not complete the form of transfer enclosed with the notice sent to it nor did the appellant approve or accept the offer in any other way. On 1st May 1959 the appellant received from the "transferee company" a further notice to the effect that up to 16th March 1959 the offer had been approved by the holders of nine-tenths in value of the shares in the "transferor company" and that the "transferee company" in pursuance of s. 130B (1) of the Companies Act 1920 thereby gave notice that it desired to acquire the shares held by the appellant in the "transferor company". The notice went on to notify the appellant that unless upon an application made by it to the Court an order otherwise was made, the "transferee company" would be entitled and bound to acquire the shares held by the appellant in the "transferor company" on the terms of the offer approved by the approving shareholders. In accordance with the notice the appellant applied to the Supreme Court of Tasmania by summons for an order declaring that the Holdings Company (the "transferee") was neither entitled nor bound to acquire the shares of the appellant in the "transferor company". The application was heard by Green J. who dismissed it. (at p478)
7. Before his Honour the arguments in support of the application included the objection that the proposal was unfair. The objection was based upon the changed position in which it placed the appellant company in respect of various rights. But the ground was not raised again upon the appeal to this Court and it is therefore unnecessary to say anything about it. (at p478)
8. In this Court the appeal was supported upon the grounds which have already been described. The first of them denies that there is in this case anything which satisfied the condition implied in the language of s. 130B that there must be something amounting to a scheme or contract. It may be remarked that there is an incongruity in supporting an application under the authority of a provision on the ground that the case is altogether outside the provision; but the apparent inconsistency may be passed by. (at p478)
9. Section 130B was transcribed from a badly drawn provision, untechnical and imprecise in its expression and exhibiting no very certain purpose or policy. Of "contract" in the present case, except with the individual shareholders who accepted the offer by completing the transfer of their shares, it is impossible to discover any trace. The respondent "transferee company" does not say there was a "contract". What it says is that there was a "scheme" and the scheme involved the transfer of shares. It will be noticed that sub-s. (1) of s. 130B speaks of "a scheme or contract involving the transfer of shares or any class of shares". Moreover it speaks of the "approving" of the contract or scheme. The transfer must be of shares in one company to another company. The first company is designated the transferor. From these factors the appellant asks the Court to conclude that the transfer of shares must be an incident consequence or fulfilment of the contract or scheme and not the thing itself, that the approval must be by the shareholders as such and accordingly it must be given at a meeting of the transferor company. It is pointed out that if the offer is to the individual holders of shares there can be no certain time when it was "made" from which the four months run. Shareholders may be scattered, and, as it is said, the offer is not "made" till it is received and it may be impossible to say when a given shareholder received the offer or if he did so at all. On the other hand, an offer to the "transferor" company for submission for approval may be made at a time fixed with certainty. All this is a not unattractive reconstruction of the provision. But what basis for it, that is not simply speculative, can be discovered in the language of the provision itself? The answer must be that the reasons assigned form no solid ground for the interpretation sought. "Scheme" is a vague and elastic word. Doubtless it connotes a plan or purpose which is coherent and has some unity of conception. But the rest of the section shows that it is dealing with some plan, proposal or project which contemplates the acquisition of the whole of the shares in the "transferor" company by the "transferee" company or the whole of a specific class of such shares. That seems enough in itself to warrant the application of the word "scheme" to the proposal. The word "involves" has of course a very wide and imprecise meaning and if the transfer of the shares is the object of the "scheme" the transfer from each shareholder may surely be described as "involved" in the scheme. We seem to be dealing with commercial rather than juristic English and if so it is the very word one would expect. The word "approve" when used in relation to a specified percentage of shares in value appears really to require the definite expression of assent by each shareholder until the required percentage is made up. However awkward it is to establish the date of the offer on the footing that it must be communicated to the shareholders, it is awkward to obtain the definitive approval of the required shareholding by proceeding by means of a meeting of members of the "transferor company". (at p480)
10. Finally, the meaning which the appellant seeks to place on this part of the provision seems inconsistent with the practice prevailing in England so far as it may be collected from the facts of the reported cases. None deals with the point but in the reported cases the offer was made to the shareholders of the transferor company and not to the company; and no objection on that score was raised. It is true that the offer of the transferee company was sent through the transferor company for transmission to its shareholders in In re Evertite Locknuts Ltd. (1945) Ch 220 ; In re Press Caps Ltd. (1949) Ch 434 ; In re Western Manufacturing (Reading) Ltd. (1956) Ch 436, at p 439 but it was an offer made by the transferee company to the shareholders. In In re CastnerKellner Alkali Co. Ltd. (1930) 2 Ch 349 and In re Hoare & Co. Ltd. (1934) 150 LT 374 and In re Bugle Press Ltd. (1960) 2 WLR 658 the offer was made directly to the shareholders. Cf. Rathie v. Montreal Trust Co. (1953) 2 SCR 204, at pp 206, 213 , a case not followed by WynnParry J. in In Western Manufacturing (Reading) Ltd. (1956) Ch 436 on other points. The first ground of the appeal fails for the foregoing reasons. (at p480)
11. The next ground of the appeal, namely that the offer must allow four months, derives support from a decision of the Supreme Court of Canada construing the similarly but somewhat differently framed Canadian provision, Rathie v. Montreal Trust Co. (1953) 2 SCR 204 , but the ground was rejected by Wynn-Parry J. in In Western Manufacturing (Reading) Ltd (1956) Ch 436 . The words of sub-s. (1) giving rise to the question are "has within a period of four months after the making of the offer in that behalf by the transferee company been approved" etc. Then follows the power to the transferee company to give a notice to dissentients "at any time within a period of two months after the expiration of the first mentioned period". The transferee company, that is to say the respondent, here required an acceptance by holders of ninety per cent in value of the shares within, let us say, four weeks. And the transferee company got it. Why should the limitation to four weeks invalidate the offer? Of necessity the required acceptance was given within the statutory four months. The expiration of the four months was awaited before the next notice was given. It was all literally a compliance with the terms of s. 130B. It may be perhaps of interest to observe that the next notice recited that the required percentage had accepted up to 16th March 1959, being a date within four months etc. The previous notice bore the date 18th November 1958 and it is evident that the word "within" led to the mention of a date earlier than the actual expiry of the four calendar months. But what reason is there for saying that four calendar months be given to the offerees? There is no implication that such a period need be given to them for consideration of the offer. It is their business if they are prepared to say yes within a more limited period. The dissentients are to receive the full period before the next step is taken. And that requirement in the present case was fulfilled. The second ground urged in support of the appeal must also fail. (at p481)
12. The third ground fares no better. The ground is that the groups form classes of shares and that it is not enough that the holders of ninety per cent in value of all the shares approved the scheme. The holders of ninety per cent in value of each class of shares must approve. Upon the facts it is clear that the number in value of the holders of shares of group F approving the scheme fell below ninety per cent. But the interpretation which this contention places upon sub-s. (1) of s. 130B is untenable. The provision supposes that a scheme may cover all the shares in a company or a class of shares therein. It is true that it speaks of "shares", not "the shares". But it seems evident from the context that all shares or all of a class or of more than one class of shares is the subject. The approval it requires is of the holders of not less than nine-tenths in value of the shares affected. Clearly enough the scheme or the notice thereof establishes what shares are affected. If it is all the shares then nine-tenths of the whole number is required and that is enough, however the fraction is composed in reference to classes. (at p481)
13. For these reasons the appeal should be dismissed. (at p481)
FULLAGAR and MENZIES JJ. Appeal from Green J. dismissing an application by Australian Consolidated Press Ltd., the holder of 34,287 group F shares and 171,435 ordinary shares in Australian Newsprint Mills Ltd., for an order pursuant to s. 130B of the Companies Act (Tas.) declaring that Australian Newsprint Mills Holdings Ltd. is not entitled to acquire its aforesaid shares. (at p481)
2. The terms of the section suggest that although the draughtsman was dealing with a known kind of transaction, he was content to use the imprecise, but no doubt generally understood, language of business rather than to express himself in words which refer accurately to clearly recognized legal conceptions, and, because this is so, any summary of the section must be regarded as doing no more than stating its general effect and reference must be had to the terms of the section itself. What in a general way it does is give a company (the transferee company), which has made an offer to acquire all or all of any class of shares in another company (the transferor company) and within four months has had its offer approved by the holders of at least nine-tenths in value of the shares to which the offer relates, the right to obtain a transfer of the outstanding shares upon the terms of its offer unless the Court, upon the application of any minority shareholder, orders otherwise. The section is not confined to offers made after its coming into operation but deals expressly with earlier transactions. (at p482)
3. Section 130B (1) is as follows: "Where a scheme or contract involving the transfer of shares or any class of shares in a company (in this section referred to as 'the transferor company') to another company, whether a company that is registered under this Act or not (in this section referred to as 'the transferee company'), has within a period of four months after the making of the offer in that behalf by the transferee company been approved by the holders of not less than nine-tenths in value of the shares affected - I The transferee company may, at any time within a period of two months after the expiration of the first-mentioned period, give notice in the prescribed manner to any dissenting shareholder that it desires to acquire his shares: and II Where such a notice is given, the transferee company shall, unless on an application made by the dissenting shareholder within one month from the date on which the notice was given the Court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee company." (at p482)
4. It is to be observed that the application here was made upon the footing that there was a scheme or contract dated 18th November 1958 involving the transfer of the appellant's shares in Australian Newsprint Mills Ltd. (the transferor company for the purposes of the section) to Australian Newsprint Mills Holdings Ltd. (the transferee company for the purposes of the section), to which the section could apply; but before Green J. and upon appeal this was strenuously denied and the appellant's primary case was that a scheme involving the transfer of its shares aforesaid could not be inferred simply from the circumstances that Australian Newsprint Mills Holdings Ltd. had made an offer to each shareholder in Australian Newsprint Mills Ltd. to purchase from the respective holders thereof, at 5 p.m. on 17th November 1958, the whole of the issued shares in Australian Newsprint Mills Ltd. (at p483)
5. We are by no means satisfied that in this case there is no more than the
making of this offer, to support the conclusion that
there was a bilateral
scheme involving the transfer of the appellant's shares. When Australian
Newsprint Mills Holdings Ltd. was
incorporated in May 1958, it was
incorporated with a memorandum of association which stated as the first object
for which it was
established, "to purchase or otherwise acquire all or any of
the issued shares in the capital of Australian Newsprint Mills Limited,
a
Company incorporated in the State of Tasmania" and, from the evidence, it is
apparent that the formation of the holding company
was regarded by the
directors of the operating company (as Australian Newsprint Mills Ltd. was
called) as part of a plan to write
up the assets of the operating company, to
incorporate a holding company with articles less burdensome to shareholders
than those
of the operating company, and to substitute for shares in the
operating company shares in the holding company that could be listed
on the
various Stock Exchanges of Australia. As early as March 1958, the directors of
Australian Newsprint Mills Ltd. resolved to
form a holding company to acquire
the issued ordinary and preference shares in the operating company - although
it is to be noted
that then there were no issued ordinary shares; later, in
June, the articles of association of the operating company were amended
to
permit the transfer of shares to Australian Newsprint Mills Holdings Ltd. free
from the right of pre-emption conferred by the
operating company's articles
upon existing shareholders; and it was also the case that the directors of
Australian Newsprint Mills
Ltd. became the directors of Australian Newsprint
Mills Holdings Ltd. It is true that the information before us does not explain
how it came about that the scheme that Australian Newsprint Mills Holdings
Ltd. should purchase shares in Australian Newsprint Mills
Ltd. was changed
from the original proposal relating to ordinary and preference shares to cover
grouped shares as well, but when
on 18th November 1958 Australian Newsprint
Mills Holdings Ltd. made the before-mentioned offer to the holders of shares
in Australian
Newsprint Mills Ltd., the offer covered all shares, ordinary,
preference and grouped - the issued capital of the Australian Newsprint
Mills
Ltd. at the time of this offer consisting of 9,230,955 ordinary shares of five
shillings each, 1,000,000 preference shares
of one pound each, and the
following grouped shares of five shillings each:
Group A - 564,740 sharesThis resume of what occurred would point to the conclusion that the offer made by Australian Newsprint Mills Holdings Ltd. to the shareholders of Australian Newsprint Mills Ltd. was made with the concurrence of the latter company, but as the offer which was made on 18th November 1958 was not the exact offer that was portended by the resolution of directors of Australian Newsprint Mills Ltd. in March 1958, we are prepared to assume, for the purposes of this appeal, what is probably contrary to the fact, namely, that the offer of 18th November 1958 was not made in concert with Australian Newsprint Mills Ltd. It may well be that evidence to the contrary was not given because, as we have said, the proceedings were taken on the basis that there was a scheme or contract involving the transfer of the appellant's shares. (at p484)
Group B - 328,272 shares
Group C - 320,971 shares
Group D - 230,480 shares
Group E - 196,007 shares
Group F - 205,721 shares
6. Nevertheless, even upon the foregoing assumption, we are satisfied that the proper conclusion here is that there was a scheme involving the transfer of shares in Australian Newsprint Mills Ltd. It was argued for the appellant that s. 130B was dealing with the kind of arrangement or compromise to which ss. 130 and 130A related; but we regard s. 130B as relating to a transaction entirely different from an arrangement or compromise between a company and its creditors or members. Notwithstanding the inexact language in which s. 130B is expressed, it is, we think, dealing with a situation between the holders of shares in one company and another company which is seeking to obtain from those shareholders the transfer of shares. The change in language from "compromise or arrangement" in ss. 130 and 130A to "scheme or contract" in s. 130B is itself significant; furthermore, s. 130B is in no way concerned with creditors. It is also apparent that s. 130B is dealing with the situation when one company desires to enforce upon a minority of shareholders in another company the terms of a scheme or contract approved by the majority of shareholders. The word "contract" in s. 130B no doubt presupposes the agreement of the company which makes an offer with some other person, but not necessarily the company whose shares are to be transferred. The word "scheme" indicates a less exact notion than the word "contract" and there is, so far as we can see, no reason why one company's pro posal to take over the shares in another company should not be comprehended within the word "scheme", notwithstanding that there is no preceding arrangement between the companies covering the acquisition and transfer of shares. It was argued that it was not possible to infer, from an offer to purchase shares, a scheme involving the transfer of shares. It is true that there might be some literal difficulty in regarding an offer to purchase shares without more as constituting a scheme involving the purchase of shares; but that difficulty does not arise here because the section relates to schemes involving the transfer of shares and there can be no doubt that a scheme to purchase shares is one that involves the transfer of shares. (at p485)
7. The learned trial judge was prepared to infer from the offe by Australian Newsprint Mills Holdings Ltd. to purchase all the shares in Australian Newsprint Mills Ltd. that there was a scheme involving the transfer of shares in the latter company, and we consider that conclusion correct, even if there were no pre-existing arrangement between the two companies that such an offer should be made to the shareholders of the operating company. Furthermore, we see no difficulty in treating the acceptance by the requisite majority of an offer to purchase shares as the approval of a scheme involving the transfer of shares. In our opinion, therefore, the ground upon which the appeal was primarily based failed. (at p485)
8. Dr. Coppel did go so far as to contend, however, that to make the section workable it was necessary to construe it not only as betokening some preliminary concert between the transferor and transferee company but as operating only in the case where a transferee company has made an offer to the transferor company for submission to its shareholders. When an offer is made directly to the shareholders themselves, there may no doubt be practical difficulty in some cases in determining the commencing date of the period of four months within which the contract or scheme must be approved by nine-tenths of the shareholders affected, but this sort of practical difficulty affords no justification for re-writing the language of Parliament - which is, in effect, what the Court was invited to do. It is worth noticing that in In re Castner-Kellner Alkali Co. Ltd. (1930) 2 Ch 349 , and in In re Hoare and Co. Ltd. (1933) 150 LT 374 , where in each case an offer seems to have been made by the transferee company to the shareholders of the transferor directly, no suggestion was made that the scheme was outside the operation of the corresponding section of the English Companies Act. (at p485)
9. Next it was contended that if it were proper to infer a scheme involving the transfer of shares in Australian Newsprint Mills Ltd. from an offer by Australian Newsprint Mills Holdings Ltd. to purchase all the shares in the former company, nevertheless the offer was not one to which s. 130B related, inasmuch as that section required an offer to be open for acceptance for four months and the offer that was made on 18th November 1958 was only open until 15th December 1958 or such later date as Australian Newsprint Mills Holdings Ltd. might notify. This argument was supported by reference to the joint judgment of Taschereau and Rand JJ. in Rathie v. Montreal Trust Co. (1953) 4 DLR 289, at p 296 . Whether or not that judgment correctly applied s. 124 (1) of the Canadian Companies Act, which corresponds, but with some differences, to s. 130B of the Tasmanian Companies Act, we agree with Green J. that it is not possible to read s. 130B of the Tasmanian Companies Act as requiring that an offer made pursuant to a scheme or contract must, if the section is to apply, be one that is expressed to be open for acceptance or rejection for a period of four months after its making. When the section refers to the approval of a majority of shareholders "within a period of four months after the making of the offer" it is referring not to the terms of the offer but to the time in which the scheme has been approved by the requisite majority of shareholders, and the object of the limitation is clearly enough to ensure that a minority of shareholders will not be compelled to transfer their shares in accordance with a scheme that has not won the approval of nine-tenths of the shareholders within four months from the time when the offer was made. We find ourselves in complete agreement with the observation of Wynn-Parry J. in In re Western Manufacturing (Reading) Ltd. (1956) 1 Ch 436 when, having been pressed with the decision in Rathie v. Montreal Trust Co. (1953) 4 DLR 289 , his Lordship considered In re Evertite Locknuts Ltd. (1945) Ch 220 and In re Press Caps Ltd. (1949) Ch 434 and said: "In the light of these authorities I should feel considerable difficulty in attributing to Parliament the intention of providing a fixed period of four months during which an offer must remain open in order that shareholders may have an opportunity of investigating the merits or demerits of the offer" (1956) 1 Ch, at p 448 . (at p486)
10. Finally it was contended that s. 130B did not apply because the holders of nine-tenths of the group F shares had not approved of the scheme. The appellant's rejection of the offer of Australian Newsprint Mills Holdings Ltd. meant that the holders of only 83.33 per cent of the group F shares approved the scheme for the purchase of their shares. On the other hand, the offer was accepted by the holders of 98.48 per cent. of all the shares in Australian Newsprint Mills Ltd.; by the holders of 98.14 per cent. of the grouped and ordinary shares; by the holders of 99.45 per cent. of the preference shares; and by the holders of 98.14 per cent. of the grouped shares taken as a whole. Unless, therefore, the section as applied to the circumstances of this case requires the approval of the holders of not less than nine-tenths in value of the group F shares, the acceptance of the offer did amount to the approval of the scheme by the requisite majority. Assuming that group F shares constituted a class of shares for the purposes of this section, consideration of this argument requires construction both of the section, and of the offer made by Australian Newsprint Mills Holdings Ltd. The section applies where what is involved is "the transfer of shares or any class of shares in a company". This language is elliptical, but it seems to us clear that what is envisaged is the transfer of either all the shares in a company, or all of any class of shares in a company. Where the scheme involves the transfer of all the shares in a company, then the approval that is requisite is that of the holders of not less than nine-tenths in value of all those shares, because they are "the shares affected". On the other hand, where no more is involved than the transfer of any class or classes of shares in a company, then the approval that is requisite is that of the holders of not less than nine-tenths in value of the shares of the class or classes concerned. Turning now to the offer which was made by Australian Newsprint Mills Holdings Ltd., it is clear that it is one offer for all the shares of the company, notwithstanding that the terms of the offer stipulate one consideration for ordinary and grouped shares, and a different consideration for preference shares. There were not three offers - one for preference shares, one for ordinary shares, and one for grouped shares. In these circumstances, we conclude that all that is required to make the section applicable is the approval by the holders of not less than nine-tenths in value of all the shares in the company, and this was given, as the figures already stated show. Dr. Coppel argued strenuously that unless the section were to be regarded as requiring an offer to be treated as applying distributively and separately to each class of shares covered thereby, there would be the risk that one class of shareholder could be overborne by a majority holding shares conferring different rights and to whom the offer was specially attractive. It seems to us, however, that any such possibility is guarded against sufficiently by the wide power of the Court to order otherwise for the protection of a minority that is not treated fairly vis-a-vis other shareholders or otherwise. The Court's discretion is ample to protect any minority against unfairness or oppression. In support of his argument, Dr. Coppel pointed to the provision in s. 130B (1) II to the effect that unless the Court orders otherwise, the transferee becomes bound to acquire the shares of a dissenting minority "on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee company" and argued that unless each class of shares was to be considered separately, it was not possible to give effect to this direction because the approving shareholders might be the holders of shares different from those of the minority. We think the words in question mean no more than that the shares of the minority are to be acquired in accordance with the scheme approved by the requisite majority. (at p488)
11. On the appeal, the decision of the learned trial judge that the scheme was not unfair to the appellant was not challenged, so that the kind of question that arose in In re Sussex Brick Co. Ltd. (1960) 2 WLR 665 , and In re Bugle Press Ltd. (1960) 2 WLR 658 does not arise here. (at p488)
12. For these reasons, we think that the judgment appealed from was right and that this appeal should be dismissed. (at p488)
WINDEYER J. I agree that this appeal should be dismissed. (at p488)
ORDER
Appeal dismissed with costs.
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