Blue Metal Industries Ltd v Dilley
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1969 |
| Date | 1969 |
| Year | 1969 |
| Court | Privy Council |
Australia - New South Wales - Company - Shares - Compulsory acquisition - Joint offer by two companies - Applicability of compulsory acquisition procedure - Whether procedure for company structure or concentration of property interests - “Transferee company” -
The Interpretation Act, 1897 (N.S.W.), enacts that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular.
Section 185 of the Companies Act, 1961 (N.S.W.) provides for the compulsory transfer of shares on a take-over where there is “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 or corporation (in this section referred to as the ‘transferee company’)” which has been accepted by the holders of not less than nine-tenths in value of the shares affected.
The appellants, B.M.I. Ltd. and C.S.R. Ltd., made a joint take-over offer to the holders of the issued stock units of R.M.C. Ltd. to acquire the whole of such issued stock units. The offer was accepted by the holders of more than nine-tenths of the stock units. The remaining holders including the respondent did not accept the offer. On his name being removed from the register of members of R.M.C. Ltd., the respondent applied to the court for rectification of the register by restoring his name on the register. The Chief Judge in Equity held that section 185 of the Companies Act, 1961, applied to a scheme or contract involving the transfer of shares in a single company to a single transferee company or corporation but not to a scheme or contract involving the transfer of shares in a company to two or more transferee companies or corporations, and accordingly made an order restoring the respondent's name to the register of R.M.C. Ltd. The High Court of Australia affirmed that decision.
On appeal:—
Held, dismissing the appeal, (1) that the mere fact that the reading of words in a section suggested an emphasis on singularity as opposed to plurality was not by itself enough to exclude plurality; and that in considering whether a contrary intention within the Interpretation Act appeared consideration must be had to the substance and tenor of the legislation as a whole and to the particular section in its setting in the legislation (post, p. 363G–H).
(2) That section 185 was designed to facilitate the merger of companies through the transfer of the undertaking of one company to another and provided a statutory procedure for the involuntary acquisition by a private interest of the property of another; that there was nothing in the scheme or philosophy of the companies legislation to suggest that the legislature intended to permit such an exceptional interference with rights of individual ownership to be exercised merely because a majority, even an overwhelming majority, thought fit to agree to it; and that, therefore, the section was essentially a company structure section and not one of concentration of property interests (post, p. 366A–C).
(3) That, on the language of section 185 considered in the light of its purpose and policy, “transferor company” referred to a single company, and “transferee company” to a single company or corporation; and that, accordingly, section 185 did not apply to a scheme involving the transfer of shares in a company to two other companies jointly but only applied to a scheme or contract involving the transfer of shares to another company alone (post, pp. 369H–370A).
Per curiam. The Interpretation Act is a drafting convenience: it is not to be expected that it would be used so as to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one: it would presuppose a different legislative policy (post, p. 365D).
Before the High Court of Australia there were (1) an appeal by C.S.R. Ltd. against the respondent D., B.M.I. Ltd. and R.M.C. Ltd.; (2) an appeal by B.M.I. Ltd. and R.M.C. Ltd. against D. and C.S.R. Ltd.; and (3) (4) and (5) applications for special leave to appeal by each company to each of which applications the respondent was a party.
On petitions for special leave to appeal to Her Majesty in Council:—
Held, that the five respective appeals should be consolidated and heard together, and that there should be one statement of case on each side, such statements to be related only to the two main appeals, and that no case be lodged in respect of the other three appeals (post, p. 362B–C).
The following cases are referred to in their Lordships' judgment:
Australian Consolidated Press Ltd. v. Australian Newsprint Mills Holdings Ltd. (
Bugle Press Ltd., In re [
Sin Poh Amalgamated (H.K.) Ltd. v. Attorney-General of Hong Kong [
The following additional cases were cited in argument:
Adams v. Thrift [
Baker v. Lewis [
Castner-Kellner Alkali Co. Ltd. In re [
Chorlton v. Lings (
Colortone Holdings Ltd. v. Calsil Ltd. [
Conelly v. Steer (
England, In re (
Hoare & Co. Ltd., In re (
Institute of Patent Agents v. Lockwood [
McIntyre v. Hardcastle [
Potts or Riddle v. Reid [
Press Caps Ltd., In re [
Rex v. National Arbitration Tribunal, Ex parte, South Shields Corpn. [
Sweeney v. Kerr [
APPEAL No. 14 of 1968 by special leave (January 23, 1968) from a joint judgment (October 17, 1967) of the High Court of Australia (Sir Garfield Barwick C.J., McTiernan and Taylor JJ.) affirming a judgment and order (April 27, 1967) of the Supreme Court of New South Wales in Equity (McLelland C.J.).
This was a consolidated appeal from the High Court of Australia which dismissed two appeals (1) by Blue Metal Industries Ltd. and Ready Mixed Concrete Ltd. against R. W. Dilley and Colonial Sugar Refining Company Ltd.; and (2) by Colonial Sugar Refining Company Ltd. against R. W. Dilley, Blue Metal Industries Ltd. and Ready Mixed Concrete Ltd.; and three applications for special leave to appeal (1) by Blue Metal Industries Ltd. against R. W. Dilley; (2) by Colonial Sugar Refining Company Ltd. against R. W. Dilley; and (3) by Ready Mixed Concrete Ltd. against R. W. Dilley from an order of McLelland C.J. that Blue Metal Industries Ltd. and Colonial Sugar Refining Company Ltd. never acquired the 17,142 stock units held by R. W. Dilley in the capital of Ready Mixed Concrete Ltd., and that the register of Ready Mixed Concrete Ltd. be rectified by restoring thereto R. W. Dilley as the holder of 17,142 stock units in that company, such restoration to be made by equal reduction in the share holdings of Blue Metal Industries Ltd. and Colonial Sugar Refining Company Ltd. The judgment of McLelland C.J. was delivered in proceedings instituted by way of summons on behalf of R. W. Dilley seeking an order pursuant to section 155 of the Companies Act, 1961 (N.S.W.), that the register of Ready Mixed Concrete Ltd. be rectified by restoring him as the holder of 17,142 stock units in that company. The respondents to the summons were Blue Metal Industries Ltd. and Colonial Sugar Refining Company Ltd.
The facts are stated in the judgment of their Lordships.
1969. January 20, 21, 22, 23, 27, 28. M. H. Byers Q.C. and I. F. Sheppard (both of New South Wales) for Blue Metal Industries Ltd. and Ready Mixed Concrete Ltd.
Forbes Officer Q.C. and R. P. Meagher (both of New South Wales) for the Colonial Sugar Refining Company Ltd.
R. M. Hope Q.C. and F. S. McAlary (both of New South Wales) for R. W. Dilley.
1969. May 5. The judgment of their Lordships was delivered by LORD MORRIS OF BORTH-Y-GEST. This is an appeal by special leave from a joint judgment of the High Court of Australia (Barwick C.J. and McTiernan and Taylor JJ.) delivered on October 17, 1967, dismissing, with costs, two appeals and three applications for special leave to appeal from a judgment and order of the Supreme Court of New South Wales in Equity (McLelland J., the Chief Judge in Equity) dated April 27, 1967,
The proceedings arose out of a take-over offer made by the appellant companies, Blue Metal Industries Ltd. (B.M.I.) and the Colonial Sugar Refining Company Ltd. (C.S.R.), on July 16, 1964. That was a joint offer made to the holders...
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