The High Court’s first decision on
the financial assistance prohibition
in section 260A of the Corporations
Act 2001 (Cth) (Corporations Act)
adopts a conservative approach to the
prohibition.
In a unanimous judgment, the High Court held that the taking of
legal proceedings by a company, at its own expense and risk, to
enforce a pre-emptive rights provision for the benefit of majority
shareholders qualified as financial assistance for the acquisition of
shares in the company.
Slea Pty Ltd (Slea) held a 33.3% interest in Connective Services
Pty Ltd (Connective), along with two other shareholders, Millsave
Holdings Pty Ltd (Millsave) and Mr Haron. Connective conducted a
mortgage aggregation business. Connective’s constitution included
a pre-emption clause requiring the company’s shareholders to offer
their shares to their fellow shareholders before the shares could be
transferred to any other party.
Slea entered into an agreement to transfer its shares to a third
party, Minerva Financial Group (Minerva), without complying with
this pre-emptive rights provision in the constitution. To prevent this,
Connective instituted proceedings against Slea and Minerva, also
joining Millsave and Mr Haron as defendants claiming that this
arrangement breached the pre-emptive rights provision.
Slea and Minerva applied to have these proceedings dismissed
or stayed, and sought, among other forms of relief, an injunction
under section 1324 of the Corporations Act to restrain Connective
from prosecuting the proceedings on the basis that they were in
contravention of the implied prohibition in section 260A(1) of the
Corporations Act against financial assistance.
The High Court held that the legal proceedings brought by
Connective, against Slea and Minerva to enforce a pre-emptive
rights provision for the benefit of other Connective shareholders at
Connective’s expense, constituted financial assistance and issued
the injunction.