In the matter of Hotel Property Investments Ltd in its own capacity and in its capacity as trustee of the Hotel Property Investments Trust [2024] NSWSC 1385 (31 October 2024)

Last Updated: 1 November 2024

Supreme Court New South Wales

Case Name:	In the matter of Hotel Property Investments Ltd in its own capacity and in its capacity as trustee of the Hotel Property Investments Trust
Medium Neutral Citation:	[2024] NSWSC 1385
Hearing Date(s):	30 October 2024
Date of Orders:	30 October 2024
Decision Date:	31 October 2024
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	Declaration made as to compliance with s 630 of the Corporations Act 2001 (Cth).
Catchwords:	CORPORATIONS – takeover offers – whether contravention of s 630 of the Corporations Act 2001 (Cth) – where any contravention was inadvertent - where persons concerned acted without improper intent – whether an order should be made under s 1325A of the Corporations Act 2001 (Cth).
Legislation Cited:	- Acts Interpretation Act 1901 (Cth), s 2B - Corporations Act 2001 (Cth), ss 6, 105, 630, 650C-650D, 655A, 659B, 1322, 1325A, 1325D - Interpretation Act 1897 (NSW), s 35 Mining Act 1906 (NSW)
Cases Cited:	- Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30; (1950) 81 CLR 161 - Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101; 18 ACSR 639, on appeal [1996] FCA 1789; (1996) 69 FCR 531; 139 ALR 527; 21 ACSR 474 - Australian Securities and Investments Commission v Yandal Gold Pty Ltd (1999) 32 ACSR 317; [1999] FCA 799; BC9903166, aff’d (2002) 41 ACSR 325; [1999] FCA 799 - Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61 - Goodlen Pty Ltd v BP Australia Pty Ltd (2004) 183 FLR 323; [2004] NSWSC 646 - National Australia Bank Ltd v Meyers [2008] NSWSC 247 - Re Sandon Capital Investments Ltd [2019] NSWSC 1512 - Re Strike West Holdings Pty Ltd [2023] FCA 15 - Re Venturex Resources Ltd (2009) 177 FCR 391; 72 ACSR 358; [2009] FCA 677
Category:	Principal judgment
Parties:	Charter Hall Wholesale Management Ltd in its capacity as trustee of the CH Investment Trust and the CH Investment Co Trust (Plaintiff) Hotel Property Investments Ltd in its own capacity and in its capacity as trustee of the Hotel Property Investments Trust (Defendant)
Representation:	Counsel: Mr PM Wood (Plaintiff) Solicitors: Arnold Bloch Leibler (Plaintiff) No appearance (Defendant)
File Number(s):	2024/401056

JUDGMENT

Nature of the application and background

1. By Originating Process filed on 29 October 2024, the Plaintiff, Charter Hall Wholesale Management Ltd in its capacity as trustee of the CH Investment Trust and the CH Investment Co Trust (“CHWM”), seeks a declaration that offers it has made in an off-market takeover bid comply with s 630(1) of the Corporations Act 2001 (Cth) (“Act”) or, alternatively, relief under ss 1325A, 1325D or 1322(4) of the Act. I heard the application on 30 October 2024 and have drawn on the helpful submissions of Mr Wood, who appears for CHWM, in this judgment.
2. By way of background, on 9 September 2024, CHWM made an off-market takeover offer for stapled securities in the Defendant, Hotel Property Investments Ltd in its own capacity and as trustee for the Hotel Property Investments Trust (“HPI”), comprising one ordinary share in HPI and one unit in the Hotel Properties Investment Trust. That offer was subject to defeating conditions (as defined in s 9 of the Act) and s 630(1) of the Act required that CHWM’s offer specify a date for giving a notice on the status of the condition which was not more than 14 days and not less than 7 days before the end of the offer period. This application raises a narrow question of construction as to that requirement, and whether relief should be permitted as to any contravention of that requirement.
3. On 25 September 2024, CHWM lodged a Second Replacement Bidder’s Statement which specified that the offer closed at 7.00 pm (Sydney time) on 4 November 2024 and that the date for the giving of notice on the status of the defeating conditions was 28 October 2024. On 18 October 2024, CHWM lodged a Supplementary Bidder’s Statement that repeated the date for the end of the offer period and the date for giving a notice on the status of the relevant conditions. On 23 October 2024, CHWM lodged a Second Supplementary Bidder’s Statement and a notice under ss 650C and 650D of the Act extending the offer period until 7.00 pm (Sydney time) on 11 November 2024, which had the consequence of extending the date for giving the notice of the status of the condition until 4 November 2024.
4. By letter dated 21 October 2024, HPI’s solicitors contended that CHWM’s bid has contravened s 630(1) of the Act because the date for the giving of notice on the status of the defeating conditions, initially 28 October 2024, was only six clear days before the end of the offer period and not seven clear days before the end of that period. After HPI’s solicitors raised that issue, CHWM sought relief from the Australian Securities & Investments Commission (“ASIC”) which was intended to address the suggested non-compliance with that section. On 25 October 2024, ASIC declined to grant that relief on the basis that, inter alia, s 630(1) of the Act requires seven clear days between the end of the offer period and the date specified for the giving of notice of the status of conditions; any contravention had already occurred and ASIC cannot grant retrospective relief; and it was open to CHWM to seek an order for relief under s 1325D of the Act. On 29 October 2024, ASIC made ASIC Instrument 24-0849 under s 655A(1)(b) of the Act, which permitted CHWM to commence this proceeding before the end of the offer period for its offer, despite s 659B(1) of the Act which (it was thought) may have prohibited CHWM from doing so before that time.

Affidavit evidence

5. CHWM reads the affidavit dated 29 October 2024 of Mr Phillips, a solicitor acting for CHWM in respect of its takeover bid for HPI. Mr Phillips outlines the history of the bid, to which I have referred above, and to the issue of CHWM’s bidder’s statement and subsequent documents, including the Second Replacement Bidder’s Statement which first included the date of giving of notice as to the status of the defeating conditions required by s 630 of the Act as 28 October 2024, and specified the offer period as ending on 4 November 2024 or any later date to which that period was extended in accordance with the Act, giving rise to the issue that is addressed in this application. Mr Phillips noted that he caused 28 October 2024 to be specified as the notice date because it was the seventh day before the end of the offer period and he considered that his doing so complied with the requirements of s 630 of the Act, and he was not then aware of ASIC’s position that the latest date that could be specified in that notice was 27 October 2024. Mr Phillips in turn refers to the correspondence from HPI’s solicitors which raised the suggested non-compliance with s 630 of the Act and to the subsequent unsuccessful application for relief from ASIC, to which I referred above. He also refers to his review of conditional off-market takeover bids in 2024, which discloses that several other offers set a date that is six clear days prior to the close of the offer for the purposes of s 630 of the Act, although some set a date that is seven or more days prior to the close of the offer.
6. By a further affidavit dated 30 October 2024, Mr Lloyd, a solicitor acting for CHWM in this application, refers to service of the documents relating to the application upon HPI and ASIC. Neither HPI nor ASIC sought to be heard in respect of the application.

Whether the offers contained in the bidder’s statements complied with s 630(1) of the Act

7. The first question in issue in this application is whether the offers contained in the bidder’s statements referred to above complied with s 630(1) of the Act. I should first outline the relevant statutory provisions, to which Mr Wood drew attention in the course of submissions. Section 6(1) of the Act provides that the provisions of Pt 1.2 of the Act (in which s 105 appears) “have effect for the purposes of this Act except so far as the contrary intention appears in this Act”. Section 105(1) and (2) of the Act relevantly provide:

Calculation of time

(1) A period of time referred to in the Corporations legislation, or an instrument made under the Corporations legislation, dating from a given day, act or event, is to be calculated exclusive of such day or of the day of such act or event.

(2) Without limiting subsection (1), in calculating how many days a particular day, act or event is before or after another day, act or event:

(a) the first - mentioned day, or the day of the first - mentioned act or event, is to be counted; and
(b) the other day, or the day of the other act or event, is not to be counted.

8. Section 606 of the Act prohibits a person acquiring a relevant interest in issued voting shares in specified circumstances and also prohibits a person making an offer if the person would contravene the section if that offer were accepted. Section 607 provides that a transaction is not invalid merely because it involves a contravention of s 606, although the person who contravened s 606 and persons involved in the contravention would potentially be exposed to penalties. That section is of significance because, irrespective of any relief that the Court may here order, any transactions arising from the acceptance of offers made by CHWM are not invalidated by any contravention of that section. Section 611 of the Act specifies exceptions to the prohibition of the acquisition of relevant interests in a company’s voting shares under s 606, which include (in item 1 of the table in that section) an acquisition that results from the acceptance of an offer under a takeover bid. Section 612 provides that the exception in item 1 of the table in s 611 does not apply to a takeover bid if the bid is carried out in contravention of, relevantly, s 630 of the Act.
9. Section 624 of the Act requires that the offers under a takeover bid must remain open for the period stated in the offer, which must start on the date the first offer under the bid is made, and provides for an automatic extension of the offer period if, relevantly, the offers under the bid are varied to improve the consideration offered or the bidder’s voting power in the target increases to more than 50% within the last 7 days of the offer period. Section 625(2) of the Act permits offers under an off-market bid to be subject to conditions that are not prohibited by ss 626-629 of the Act.
10. Section 630(1) of the Act relevantly provides:

“Offers under an off-market bid may be made subject to a defeating condition only if the offers specify a date (not more than 14 days and not less than 7 days before the end of the offer period) for giving a notice on the status of the condition.” [emphasis added]

Section 650C deals with the extension of the offer period for an off-market bid and s 650F provides that a bidder may free an off-market bid from defeating conditions in specified circumstances.

11. I now turn to the construction issue raised by this application. As I noted above, CHWM relevantly seeks a declaration that its offers (“Offers”) under its off-market bid (“Bid”) contained in the Second Replacement Bidder’s Statement dated 25 September 2024, as supplemented by the Supplementary Bidder’s Statement dated 18 October 2024 and the Second Supplementary Bidder’s Statement dated 23 October 2024 (“Bidder’s Statements”), comply with s 630(1) of the Act. As I also noted above, the date specified in CHWM’s Second Replacement Bidder’s Statement and Supplementary Bidder’s Statement was 28 October 2024 and the end of the offer period was 4 November 2024. In the case of the Second Supplementary Bidder’s Statement, the date specified was 4 November 2024 and the end of the offer period was 11 November 2024. Mr Wood points out that, in each case, the date specified is the seventh day before the end of the offer period. However, it is not seven clear days before the end of the offer period.
12. Mr Wood submits that, in the absence of any contrary intention, in applying ss 105(1) or 105(2) of the Act (which I set out above) to s 630 of the Act (which I also set out above) in its application to the Second Replacement Bidder’s Statement and the Supplementary Bidder’s Statement, in determining which day is seven days before the end of the offer period (being 4 November 2024), that date of 4 November 2024 is not counted, but the date on which the notice must be issued is counted. He submits that, applying either of the approaches mandated by ss 105(1) or (2), the seventh day before the end of the offer period is 28 October 2024, and that the same analysis applies to the date specified in the Second Supplementary Bidder’s Statement (4 November 2024). On that basis, Mr Wood submits that CHWM has specified a date that is “not less than 7 days” before the end of the offer period in accordance with s 630(1) of the Act, on the basis that the seventh day is “not less than 7 days” before the end of the offer period.
13. I have regard to the decision in Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30; (1950) 81 CLR 161 (“Associated Dominions”), where Fullagar J observed (at 183) that:

“Some argument took place as to the minimum number of days which must, if s 55 is complied with, be allowed after "the date of the notice" (whatever that may mean) for showing cause. It was common ground that the date of the notice itself must be excluded in calculating the time (see Acts Interpretation Act 1901–1947 s 36(1)). But it was argued on the one hand that the time to be allowed expired at the end of the fourteenth day after the date of the notice, so that the commissioner could commence an investigation on the fifteenth day. It was argued on the other hand that the Act required that fourteen clear days should elapse between the date of the notice and the first day on which the commissioner could commence an investigation. On this view the period would not expire until the end of the fifteenth day after the date of the notice, and the first day on which the investigation could commence would be the sixteenth day after that date. In the view which I take of the case the question does not really arise, but I may say that, in my opinion, the former view is clearly the correct view. There is some authority for saying that the use, in a statute prescribing a time limit, of such expressions as "at least" and "not less than" indicate an intention that the specified number of "clear days" must elapse between two acts or events (see R v Justices of Shropshire [1838] EngR 591; (1838) 8 Ad & E 173 (112 ER 803); Young v Higgon [1840] EngR 297; (1840) 6 M & W 49 (151 ER 317); Chambers v Smith [1843] EngR 1002; (1843) 12 M & W 2 (152 ER 1085); Re Railway Sleepers Supply Co [1885] UKLawRpCh 120; (1885) 29 Ch D 204 and Ex parte McCance; Re Hobbs [1926] NSWStRp 82; (1926) 27 SR (NSW) 35; 44 WN 43). But it is clear, I think, that significance is attached to such expressions as "at least" or "not less than" only in cases where the immediate purpose of the prescription of a time is to define a period on the expiration of which an act may be done, and not in cases where the immediate purpose is to define a period within which an act must be done. In the former class of case the prescribed number of days must elapse between two acts or events. In the latter class of case the act must (unless a contrary intention appears) be done before the expiration of the last of the prescribed number of days (see, eg Radcliffe v Bartholomew [1891] UKLawRpKQB 186; (1892) 1 QB 161 and Armstrong v Great Southern Gold Mining Co [1911] ArgusLawRp 47; (1911) 12 CLR 382). In the latter case Griffith CJ said — "When you talk of doing a thing within a period of a certain number of days, it is quite clear that the end of the last day is the furthest limit. It is impossible to say that a thing required to be done within seven days is done within seven days if done on the eighth day, and it is impossible to make any alteration of the limit by adding the word 'clear'" (1911) 12 CLR, at p 388. In the case of s 55 of the Life Insurance Act it is plain that the immediate purpose of the prescription of a period is to fix a time within which cause must be shown. It follows that the last day on which cause may be shown is the fourteenth day after the date of the notice.”

14. Mr Wood submits that the reference in s 630 of the Act to a “date (not more than 14 days and not less than 7 days before the end of the offer period) for giving a notice on the status of the condition” falls within the latter class of case specified by Fullagar J and not the former. There is force in that submission, although the position is more complex here where the reference to “not less than 7 days” operates to preserve a minimum period between the date of the notice and the end of the offer period and not only to specify the date by which the relevant act must be done. In that sense, it arguably has something in common with Fullagar J’s first category, although the calculation is to define a period on the expiration of which the act (ie the giving of the notice) can be done, but by counting back from the end of the offer period rather than forward from a specified date.
15. Mr Wood recognises that, in Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61 (“Forster”), the High Court considered the question of whether an application to renew an exploration licence was made “not later than one month before the expiry of such licence” as required by s 83B(13)(a) of the Mining Act 1906 (NSW). Mr Wood recognises that Walsh J there observed (at 428-429) that the phrase “not later than one month before” should be interpreted according to a rule that was “generally applicable to provisions referring to an act being done ‘not less than’ a stated number of days before a given day or event”, as requiring that the period of one month shall be a “clear” month or a “full” month. His Honour also observed (at 429) that:

“The statement that the specified period that is to elapse from the doing of an act before a given day or event must be a "full" period, or must be so many "clear" days, means that the period is to be exclusive, both of the day on which the act is done and of a day which can be regarded as marking out the specified terminus by reference to which the period is to be calculated. In order that the period may be capable of calculation as a "clear" period of a specified number of days, or of some other recognized span of time, it is necessary, in my opinion, to be able to identify some day as that which indicates the termination of the period, but which is itself to be excluded from the computation. If a day is named as the day before which the specified period is to elapse there is no difficulty. If an event is named, the day when that event occurs is the day before which (that is to say, before the commencement of which) the period must elapse. When, as in the present case, the indicated termination of the specified period is described as "the expiry of such license", then in my opinion what must be done is to identify some day as being the day upon which the license may be said to expire and to exclude that day in computing the "clear" period of one month to which the statutory provision refers.” [emphasis added]

16. Gibbs J there observed (at 445) that:

“Where an instrument prescribes that a period of time must elapse between one event and another, the words “at least” or “not less than” should, unless the context of the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events.”

17. His Honour there undertook a detailed review of earlier case and observed (at 446-447) that:

“If the matter had been res integra it might have been thought to be a nice question whether a statute requiring an act to be done "not later than" or "at least" or "not less than" so many days before a given event meant that the act must be done so many clear days before that event. However, the effect of the words "at least" and "not less than" has been considered in a long series of authorities. In R v Justices of Shropshire (3), it was held, following Zouch v Empsey (4), although not without some doubts, that a provision requiring a notice of the grounds of appeal to be given "fourteen days at least" before the first day of sessions meant fourteen clear days. This case has been regarded as settling the meaning of "at least", at any rate prima facie, and it has frequently been followed. It has been held that a section which required that a document nominating a candidate should be delivered "seven days at least" before the day of the nomination meant seven days exclusive both of the day of the nomination and the day of delivery: Ex parte Hurst; re De Clouet (5); that a requirement that notice should be given by a council "one month at least" before fixing a level meant one clear month: Kilpatrick v Mayor of Prahran (6); and that a provision of the Liquor Act (NSW) that notice must be given "at least fourteen days before" an application for a license meant fourteen clear days and that the Licensing Court had no jurisdiction to entertain an application if notice had been given on the fourteenth day before the application: Ex parte McCance; Re Hobbs [1926] NSWStRp 82; (1926) 27 SR (NSW) 35. Similarly, it has been held that if "at least five days" notice of a meeting is to be given, five clear days' notice must be given: Mount Oxide Mines Ltd v Gould (1915) 15 SR (NSW), and see Mercantile Investment and General Trust Co v International Co of Mexico (1893) 1 Ch 484 n; at p 489 n; a contrary decision in Anglo-Australian Investment, Finance and Land Co Ltd (1894) 4 BC (NSW) 63 is opposed to authority. The meaning of the expression "not less than" so many days gave rise to some initial fluctuation of opinion: Chambers v Smith [1843] EngR 1002; (1843) 12 M & W 2 (152 ER 1085), but since that decision the use of the words "not less than" so many days has been regarded as indicating that so many clear days must elapse between two acts or events: re Railway Sleepers Supply Co [1885] UKLawRpCh 120; (1885) 29 Ch D 204; re Hector Whaling Ltd (1936) 1 Ch 208; Bear v Official Receiver [1941] HCA 41; (1941) 65 CLR 307, at pp 311, 318; Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30; (1950) 81 CLR 161, at p 183; R v Long (1960) 1 QB 681. A different view has been taken in relation to notices to quit: Schnabel v Allard (1967) 1 QB 627, but that case apparently depends on the special rules of the law of landlord and tenant.

Whatever doubts may have originally existed, and however nicely balanced the arguments may have originally been, it is now, as Chitty J said in re Railway Sleepers Supply Co (1885) 29 Ch D, at p 208, "better . . . to adhere to settled rules". Where an instrument prescribes that a period of time must elapse between one event and another, the words "at least" or "not less than" should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events. Although the phrase "not later than" has not received so much judicial attention, it seems to me indistinguishable in meaning in this sort of context from "at least" or "not less than". With respect, I agree with the remarks of Megaw LJ in Carapanayoti & Co Ltd v Comptoir Commercial Andre & Cie SA (1972) 1 Lloyd's Rep, at p 145: "True, one has always to look at the particular words used in the particular contract. But in that context I should not be prepared to accept the suggestion that the phrase 'not later than 21 days before' should be regarded as producing a different legal result from 'at least 21 days before' or from a clause which incorporates the words 'not less than 21 days before'. Such distinctions in my view would be a discredit to the law.”

I therefore respectfully agree that the decision in Carapanayoti & Co Ltd v Comptoir Commercial Andre & Cie SA (1972) 1 Lloyd's Rep 139 is in complete accord with the earlier authorities. Moreover, the decision is, in my opinion, indistinguishable from the present case. ...

It seems to me that s. 35 (ii) of the Interpretation Act, 1897 (N.S.W.) provides no assistance in the construction of s. 83B(13)(b). Section 35 (ii) reads:

“The time prescribed or allowed in an Act for the doing of a particular thing shall, unless the contrary intention appears, be taken to exclude the day of the act or event from or after which the time is to be reckoned, but to include the day for the doing of that thing”.

The section obviously deals with the case where the time prescribed or allowed for doing a thing is to be reckoned from or after an act or event; that is not the effect of s. 83B (13) (b). In any case it has been held that the use of words such as "at least" or "not less than" would constitute a sufficient indication of an intention to exclude the application of s. 35 (ii) ... and the words "not later than" would have a similar effect.” [emphasis added]

18. I recognise that former ASIC Regulatory Guide 7, Calculating time period, which was in place for a considerable time until withdrawn on 25 October 2023, treated that decision as authority that a reference to “not less than” a specified period meant that period exclusive of that days on which the relevant acts or events occurred.
19. However, that question was carefully considered by Gzell J in Goodlen Pty Ltd v BP Australia Pty Ltd (2004) 183 FLR 323; [2004] NSWSC 646 (“Goodlen”), where his Honour dealt with a requirement under s 16(3)(a) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) that a notice terminating a franchise agreement should inform the franchisee that it was to be terminated on a specified date being a date not earlier than 30 days after the day on which the notice was served unless the court allowed a lesser period. In that case, the first notice of termination was served on the plaintiff on 9 January 2004 and specified 8 February 2004 as the date on which termination was to take place. His Honour observed (at [9]-[12] that:

“In Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30; (1950) 81 CLR 161 at 183, Fullagar J drew a distinction where such phrases as “at least” and “not less than” are used in reckoning time. If the purpose is to define a period of time at the expiration of which an act might be done, clear days are required: the prescribed number of days must elapse between the two events. If the purpose is to define a period within which an act might be done, clear days are not required: the act must be done before the expiration of the last of the prescribed number of days.

The parties thought that BP Australia Ltd v Carrige [1992] NTSC 72; (1992) 109 FLR 236 was direct authority for the plaintiff’s submission. It is not. Under consideration was a rule providing that a party might serve on another party a notice stating that unless that party, within a time to be expressed in the notice, “which shall not be earlier than 14 days after service”, disputed a fact specified in the notice, the fact should be taken to be admitted. At 240, Master Lefevre concluded that the expression was equivalent to “which shall not be less than 14 days after service”. He applied the distinction stated in Balmford and concluded that since the period was one within which an act was to be done, clear days were not required: the specification in the notice of the fourteenth day after service was proper. The authority supports the defendant’s contention that clear days were not required in the specification of the termination date in the first notice of termination.

That contention is also supported by the ordinary meaning of the language used in the PRMF Act, s 16(3)(a). If one is entitled to specify a date not earlier than 30 days after service, one may not specify the twenty ninth day but one may specify the thirtieth day. That day is not less than 30 days from service. Such an approach was taken by Williams J in Ward v Berndston (1889) 8 NZLR 21. Under consideration was a provision prescribing that an appeal from a Warden’s Court should be heard at the next sitting of the District Court not earlier than 20 days from the time the decision in the Warden’s Court was given. His Honour held that clear days were not required. At 27–28 he said:

In the absence of any arbitrary rule of construction of the particular form of words used in the section, the words should receive their natural meaning. In ordinary English, not earlier than a particular day does not necessarily mean later than such a day. If the act, whatever it is, is done on the day itself, it is done not earlier than the day.

In my view the first notice of termination specified a termination date that was not earlier than 30 days after service of the notice and there was no breach of the PRMF Act, s 16(3)(a).”

20. In National Australia Bank Ltd v Meyers [2008] NSWSC 247, Harrison AsJ applied Associated Dominions and observed (at [21]-[22]) that:

“Clause 20.1 of the mortgage stipulates that the Bank has given a default notice allowing a period of at least 31 days to do an act, that is, to remedy the default.

The notice says, “If default is not remedied within 31 days from the date of the notice”. Hence, there is a reference in the mortgage to at least 31 days and in the notice the reference is to within 31 days. The immediate purpose of the prescription of a period in both the mortgage and the notice is to fix a time within which the default may be remedied. In my view it follows that the furthest limit is the last day on which the default can be remedied, namely the 31st day after the date of the issue of the notice.”

I recognise that that case did not involve the additional complexity noted here, that the specified time period is set by reference to an end date that is to be “not less than” the closing date of the bid.

21. Mr Wood submits that, where s 630(1) requires CHWM to specify a date which is not less than seven days and not more than 14 days before another date, the relevant question is different to the question which was considered by the High Court in Forster, namely whether a specific act was done not later than one month before another date. He submits that s 630(1) specifies a seven-day “window” in which a date must be specified for the notice, and the reasoning in Forster does not apply to the calculation of the earlier or later limit of the “window”. He also submits that the requirement for “clear days” would result in the bidder being able to nominate the 15th day before the end of the period as the date for giving the notice.
22. Mr Wood fairly accepts that, if Gibbs J’s reasoning in Forster were applicable, it would suggest that the use of the words “not less than” in s 630(1) of the Act indicate a “contrary intention” that would render s 105(1) of the Act inapplicable here; and that, although s 105 does not include the words “unless the contrary intention appears” that were contained in s 35 of the Interpretation Act 1897 (NSW), s 6 of the Act (to which I referred above) states that the provisions of Pt 1.2 (in which s 105 appears) “have effect for the purposes of this Act, except so far as the contrary intention appears in this Act”. In the event, the result that I reach below is consistent with that contemplated by s 105 of the Act. Mr Wood also refers to an observation of HPI’s solicitors, who contrasted the drafting of s 630(1) (“not less than 7 days”) with the drafting of s 624(2) (“within the last 7 days”), and suggested that that drafting would include the final day. I accept Mr Wood’s submission that, whether or not that analysis is correct, the different wording in s 624(2), dealing with the different topic of automatic extensions to the offer period, does not significantly assist with the proper interpretation of s 630(1). Mr Wood also submits, and I accept, that there is no particular policy to be served by a requirement for seven clear days, as distinct from the position for which CHWM contends. However, that does not assist CHWM, where there is a clear policy served by defining a time limit, and consistently applying it, even if the limit itself has a somewhat arbitrary character and could equally be more or less than that specified.
23. I do not find this to be an easy question. First, the decision in Forster and the case law to which Gibbs J there refers does not sit easily with the position for which CHWM contends. Second, where the concept of “not less than” here has, as Gibbs J there noted, an established meaning, there would be reason to allow it that meaning even where used as the end date within a “window” determined by a calculation of a number of days from the end of a period. Third, that meaning would not necessarily extend to the concept of “not more than” to have the consequence which Mr Wood contends would be unreasonable. Fourth, the approach adopted by ASIC in former RG 7, Calculating time periods, had stood for a considerable time, although parties’ commercial expectations as to the application of s 630 of the Act would not be frustrated by departing from that approach, where a notice that was given seven clear days before the end of the offer period would also comply with a less demanding approach.
24. On the other hand, the distinction drawn by Fullagar J in Associated Dominions has been applied in a very similar case in Goodlen and I am not persuaded that either decision is wrong; second, there is real force in the proposition that, absent a special rule of construction, words should be given their natural meaning; and third, as Mr Wood point out, in ordinary English, if a notice as to the defeating conditions is given on the seventh day before the end of the offer period, then it is given not less than seven days before the end of that period. With considerable hesitation, and despite the approach taken in former RG 7, Calculating time periods, I will follow Associated Dominions and Goodlen and, on that basis, I accept Mr Wood’s submission that CHWM has complied with s 630(1) of the Act and has not specified a date that is “less than” seven days before the end of the offer period. For these reasons, I will make the declaration sought in prayer 1 of the Originating Process.

Alternative application for relief

25. Alternatively, CHWM seeks a declaration under ss 1325A or 1325D of the Act, or alternatively an order under s 1322(4)(a) of the Act declaring, that the Bid, the Offers and the Bidder’s Statements have had effect at all times as if there had been no contravention of s 630(1) of the Act; and an order under s 1322(4)(d) or s 1325A of the Act extending the date by which the Plaintiff must give notice under s 630(3) of the Act to 4 November 2024, or, if the offer period is further extended to a date determined by adding the period of the further extension to 4 November 2024. While this application was brought in the alternative, I should address it where the conclusion that I have reached above is plainly not inevitable and an appellate Court could readily take a different view. Mr Wood did not press any application to address any invalidity of any transaction arising from any contravention of s 630 of the Act, where there are no transactions that presently require validation and, I would add, s 607 of the Act preserves the validity of the relevant transactions.
26. Mr Wood points to potentially serious consequences arising from a contravention of s 630 of the Act (if, contrary to my view, a contravention was established) including, by reason of s 612(e), CHWM losing the protection of the exception in item 1 of s 611; CHWM contravening s 606(4) of the Act by making an offer that would result in it contravening s 606(1) if it was accepted; and CHWM contravening s 606(1) if its relevant interest in the target securities increases to more than 20%. I accept these are significant matters, although the validity of any transactions would be preserved, as I noted above, by s 607 of the Act.
27. It seems to me this aspect of the application is straightforward, and it is not necessary to consider the possibility of relief other than under s 1325A of the Act, which plainly authorises the relief sought by CHWM. Section 1325A(1)(a) of the Act relevantly provides that the Court may make any order or orders (including a remedial order) that it considers appropriate if a person contravenes a provision of Chapter 6. I recognise that the orders sought in paragraph 2 of the Originating Process are not “remedial orders” as defined in s 9 of the Act, but that section is not limited to orders that fall within that concept. Mr Wood also submits and I accept a failure to give notice within the period specified in s 630 may contravene that section for the purposes of s 1325A of the Act, and that result is reinforced by s 2B of the Acts Interpretation Act 1901 (Cth) which provides that, in any Act, “contravene” “includes fail to comply with”. I also accept that CHWM has standing to bring an application under s 1325A(3)(e) because it is, at least, a person whose interests are affected by any contravention of s 630 of the Act.
28. Mr Wood submits and I accept that the Court’s power to make an order under s 1325A requires only that the Court consider that there has been a contravention of Ch 6 and that the order sought is “appropriate”, and that the power conferred on the Court by that section is discretionary but may be exercised to advance the objectives of the statutory scheme of the Act. The Court’s power under this section is to be exercised in a way which advances the principal objectives of the statutory scheme under Ch 6, namely to ensure that the acquisition of shares in listed companies takes place in an efficient, competitive and informed market, including that shareholders of a company have reasonable and equal opportunities to participate in any benefits accruing to shareholders under a proposal by which a person acquires a substantial interest in the company: Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101; 18 ACSR 639, on appeal [1996] FCA 1789; (1996) 69 FCR 531; 139 ALR 527; 21 ACSR 474; Australian Securities and Investments Commission v Yandal Gold Pty Ltd (1999) 32 ACSR 317; [1999] FCA 799; BC9903166, aff’d (2002) 41 ACSR 325; [1999] FCA 799. The purposes of a remedial order under this section includes, in an appropriate case, facilitating intended market behaviour by remedying a technical breach and there are, for example, many cases under this section extending the time for lodgement of an application for admission to quotation as required by s 625(3) where a failure to lodge that application resulted, for example, from an error in legal advice: Re Venturex Resources Ltd (2009) 177 FCR 391; 72 ACSR 358; [2009] FCA 677; Re Sandon Capital Investments Ltd [2019] NSWSC 1512; Re Strike West Holdings Pty Ltd [2023] FCA 15.
29. Mr Wood submits and the evidence makes plain that any contravention of s 630(1) of the Act which arose here (if, contrary to my view, a contravention occurred) was the result of inadvertence or a mistake on the part of solicitors acting on behalf of CHWM. As I noted above, Mr Phillips’ evidence is that he was responsible for selecting the date to be included in the Second Replacement Bidder’s Statement, and that he selected the date of 28 October 2024 because it was the seventh day before the end of the offer period and he considered that doing so complied with s 630(1) of the Act, because that date was not less than seven days before the end of the offer period. His evidence is that he was not aware of ASIC’s view that s 630(1) requires the bidder to specify a date that is seven clear days before the end of the offer period. Mr Wood submits and I accept that, if (contrary to my view) Mr Phillips’ understanding was wrong, his error was an honest mistake arising from inadvertence regarding the proper interpretation of s 630(1) of the Act. It is plain that Mr Phillips is not alone in making such an error (if, contrary to my view, he was in error) where several other recent takeover bids appear to have proceeded on the same basis. I accept that this is not a case of deliberate non-compliance.
30. I also accept that the orders sought in paragraph 2 of the Originating Process would not cause any substantial prejudice to HPI securityholders, where the time available to them to consider the notice of the status of the defeating conditions so that they can make an informed decision as to whether to accept CHWM’s offer would then be abridged minimally, by a day at most, if the relief were granted. I also bear in mind that, as Mr Wood points out, s 630(4) requires CHWM to publish a notice as soon as possible if a defeating condition is fulfilled before the date for publishing the notice on the status of the condition, and HPI securityholders would therefore have been notified of any defeating conditions which have been fulfilled prior to the notice date. I accept that the loss of one day’s notice does not prejudice HPI securityholders to an extent that would cause the Court to refuse to make the orders now sought, had been it necessary to do so.
31. I would have made the orders pressed in paragraph 2 of the Originating Process had it been necessary to do so, namely to declare that the Bid, the Plaintiff’s Offers and the Bidder’s Statement had effect at all times as if there had been no contravention of s 630(1) of the Act and order that the date by which CHWM must give notice under s 630(3) of the Act be extended to 4 November 2024; or, if the offer period is further extended, to a date determined by adding the period of the further extension to 4 November 2024. I do not make those orders where the relevant contravention is, on my view, not established.

Orders

32. For these reasons, I make orders that:

1 Declare that the Plaintiff’s offers under its off-market bid for all stapled securities in Hotel Property Investments (comprising one unit in Hotel Properties Investment Trust and one ordinary share in the Defendant) contained in the Second Replacement Bidder’s Statement dated 25 September 2024, as supplemented by the Supplementary Bidder’s Statement dated 18 October 2024 and the Second Supplementary Bidder’s Statement dated 23 October 2024 comply with section 630(1) of the Corporations Act.

2 Reserve liberty to apply within seven days as to costs.

3 The exhibits be returned.

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