However due to the unique circumstances of Maruha Corp v Amaltal, deceit already having been held both in High Court and not appealed to the Supreme Court, the Court held fiduciary obligations of loyalty existed in respect of Amaltal’s undertaking of accounting and taxation functions.

Strict Interpretation of “Settle”:  The Supreme Court overturned the CA and held that the requirement to settle, after a settlement notice has been given, requires, in the circumstances of remote settlement, both payment by the stipulated time (satisfied by electronic transfer) and notification of payment by the stipulated time (not satisfied as Vendor’s fax was engaged and notice was given 7 minutes late).

Securities Act Minimum:  Presentation of a cheque which was held to be valid subscription money.  This overruled the CA that had previously held the cheque was delivered subject to a condition that it never be presented.  The Supreme Court held that the cheque was and remained an unconditional mandate to pay (and not a sham) and therefore valid consideration.

Australian Takeovers Panel:  The Takeovers Panel made a declaration of unacceptable circumstances after it determined that Cemex, a bidder for Rinker had resiled from a best and final statement made during the course of its takeover bid for Rinker.  The Panel made remedial orders requiring Cemex to make a payment to the people who sold Rinker shares on-market between the date which the best and final statement was made and the date on which Cemex resiled from that position.  Complying with the order is expected to cost Cemex about A$30 million.  Cemex sought a review of the Panel’s decision.  The Review Panel has confirmed the previous decision of unacceptable circumstances.  Judicial review proceedings have been filed.

Australian New South Wales Supreme Court:  The Court ordered specific performance of a pre-bid agreement on the basis that a scheme of arrangement at a higher price did not amount to a “higher offer” which would have allowed the shareholder to get out of its agreement to accept the bid.

Delaware Decisions:  Go Shops Follow-up Decisions:  These decisions (Topps/Lear) indicate that a target board may rely in part on the post-signing market check contemplated by a go-shop provision to satisfy its Revlon duty.  The decisions also suggest, however, that the Courts will carefully scrutinise the decision to use a go-shop in light of all the facts and circumstances.  Another Delaware decision (Inter-tel) had some guidance for postponement of merger vote.

Canadian Decisions:  Joint Rule & Going Private:  The decision of the Ontario Securities Commission (Sterling) concludes that an irrevocable lock-up alone cannot raise a presumption that a shareholder is a joint actor with the bidder, regardless of how tightly constrained the shareholders ability may be under the agreement to act independently of the bidder.

In parallel Court proceedings the Ontario Superior Court of Justice allowed a target’s directors considerable latitude regarding the process to follow in a going private transaction involving insiders.  This latitude is noteworthy compared with the more restrictive approach taken by the Delaware Court.