The Panel advises that it has decided not to proceed with hearing an application by Westgold in relation to a non-renounceable rights issue prospectus, dated 15 February 2002, issued by Precious Metals Australia Ltd (PMA). The application was received on 7 March. It related to concerns that Westgold asserts about the effect on the level of control of PMA that an underwriting agreement for the rights issue may have if there is a significant shortfall in the rights issue.
On Friday, 15 March the Panel was advised that Westgold had commenced proceedings in the Supreme Court of Western Australia in relation to the prospectus, and the application of the related party provisions of the Corporations Act to the underwriting agreement.
The majority of the issues raised, the evidence to be considered, and the remedies sought in the Supreme Court action overlap with those in the application before the Panel. The Panel is intended to be a quick, commercial forum for resolving disputes in relation to the control of companies. There is little point in the Panel considering the issues within its timeframes if overlapping issues are being litigated on a different timetable. Similarly, the Panel is intended to be a cost effective forum. There is no cost effectiveness in similar issues involving similar remedies being considered almost simultaneously in two separate fora.
In light of the court proceedings initiated by Westgold, it is inappropriate to have overlapping facts and issues traversed in two separate proceedings.
The sitting Panel in this matter is constituted by Elizabeth Alexander AM (sitting President), Kathleen Farrell (sitting Deputy President) and Luise Elsing.
Director, Takeovers Panel
Level 47 Nauru House, 80 Collins Street,
Melbourne VIC 3000
Ph: +61 3 9655 3501