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Friday 6 April 2018

18-095MR Clive Palmer and his company Palmer Leisure Coolum charged over breaches of takeover law

Following an ASIC investigation, Mr Clive Frederick Palmer, 63, of Broadbeach Waters in Queensland, has been charged with breaching takeover law arising from a proposed takeover of The President's Club Ltd (TPC).

Palmer Leisure Coolum Pty Ltd (Palmer Leisure Coolum), previously known as Queensland North Australia Pty Ltd, has also been charged over the proposed takeover.

ASIC alleges that in April 2012 PLC publicly proposed to make a takeover bid for securities in TPC but subsequently did not make an offer for those securities within two months, as required under section 631(1) of the Corporations Act 2001. Mr Palmer, a director of Palmer Leisure Coolum, has been charged with contravening section 631(1) - through the operation of section 11.2 of the Criminal Code - for aiding, abetting, counselling or procuring the company to commit that offence.

The charges carry a maximum penalty of two years' imprisonment and fine of $11,000 for an individual, and fines of $55,000 in respect of a corporation.

The matter has been listed for a pre-trial hearing before the Brisbane Magistrates’ Court on 13 June  2018.

An application has been made by Mr Palmer and Palmer Leisure Coolum to the Supreme Court of Queensland for the charges to be permanently stayed, with the application returnable before that court on 19 April 2018.

The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.

Background

TPC operated a 'time share' scheme at a property previously known as Hyatt Regency Coolum, and now known as Palmer Coolum Resort.

On 12 April 2012, Queensland North Australia Pty Ltd (now known as Palmer Leisure Coolum Pty Ltd) lodged a bidder’s statement with ASIC that proposed a bid for all of TPC’s shares and the corresponding villa interests.

Section 631(1) of the Corporations Act requires that offers for the securities under a takeover bid must be made within two months after the public proposal of the takeover bid.

No offer was made by Queensland North Australia Pty Ltd to TPC’s members within this period, which commenced on 12 April 2012 (being the date of the public proposal of the takeover bid).

Editor's note:

On 12 April 2018, Clive Palmer and Palmer Leisure Coolum Pty Ltd filed with the Supreme Court of Queensland a Notice of Discontinuance in relation to their application to permanently stay the charges.

Editor's note 2:

On 13 June 2018, the Brisbane Magistrates' Court listed the matter for a directions hearing on 30 August 2018.

Editor's note 3:

On 30 August 2018, the Brisbane Magistrates’ Court listed the matter for a committal mention on 21 September 2018.

Editor's note 4:

On 19 September 2018, Palmer Leisure Coolum Pty Ltd and Mr Palmer filed a statement of claim with the Queensland Supreme Court seeking orders for, among other things, the permanent stay of the criminal proceedings before the Brisbane Magistrates’ Court. 

On 21 September 2018, the Brisbane Magistrates’ Court listed the criminal proceedings for mention on 2 November 2018.

Editor's note 5:

On 31 August 2018, ASIC and the CDPP filed an application before the Queensland Supreme Court to stay or set aside the application filed by Mr Palmer and PLC on 19 September 2018 on the basis that it lacks a reasonable cause of action, is scandalous, is frivolous or vexatious and is otherwise an abuse of the process of the court (alternatively, that the whole of the statement of claim filed by Mr Palmer and PLC, or relevant parts of it, be struck out on the same basis). The application made by ASIC and the CDPP is listed to be heard on 4 December 2018.

On 2 November 2018, the Brisbane Magistrates’ Court listed the criminal charges against Mr Palmer and PLC for mention on 25 January 2019.

Editor's note 6:

On 23 January 2019, the Queensland Supreme Court ordered that the claims made by Mr Palmer and Palmer Leisure Coolum be set aside and their statements of claim be struck out. Read the court's judgement here.

Editor's note 7:

On 25 January 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for mention on 22 February 2019.

Editor's note 8:

On 12 February 2019, Mr Palmer and Palmer Leisure Coolum filed notices of appeal with Court of Appeal of the Supreme Court of Queensland in relation to the judgment delivered on 23 January 2019.

Editor's note 9:

On 22 February 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for a further mention on 28 June 2019.

Editor's note 10:

On 8 March 2019, the Court of Appeal of the Supreme Court of Queensland directed that the appeals filed by Mr Palmer and Palmer Leisure Coolum Pty Ltd be set down for a hearing on 4 June 2019.

Editor's note 11:

On 4 June 2019 the Court of Appeal of the Supreme Court of Queensland heard the appeals of Mr Palmer and Palmer Leisure Coolum Pty Ltd. The Court reserved its decision.

Editor's note 12:

On 28 June 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 2 August 2019.

Editor's note 13:

On 2 August 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 20 September 2019 and granted bail to Mr Palmer on his own undertaking.

Editor's note 14:

On 20 September 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 13 December 2019.

Editor's note 15:

On 13 December 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 3 April 2020.

Editor's note 16:

On 17 March 2020, the Court of Appeal of the Supreme Court of Queensland dismissed the appeals of Mr Palmer and Palmer Leisure Coolum with costs. Read the court's judgment here.

Editor's note 17:

On 2 April 2020, the Brisbane Magistrates’ Court adjourned the criminal proceedings to a date to be fixed and, on 14 April 2020, listed the matter for further mention on 26 June 2020.

On 14 April 2020, Mr Palmer and Palmer Leisure Coolum filed applications with the High Court of Australia for special leave to appeal in relation to the judgement delivered on 17 March 2020 by the Queensland Court of Appeal.

Editor's note 18:

On 26 June 2020, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 27 November 2020.

Editor's note 19:

On 5 August 2020, the High Court of Australia refused the Applications for Special Leave made by Mr Palmer and Palmer Leisure Coolum.

Editor's note 20: 

On 27 November 2020, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 11 March 2021.

Editor's note 21: 

On 11 March 2021, the Brisbane Magistrates’ Court adjourned the matter to 11 June 2021.

Editor’s note 22:

On 1 June 2021, Palmer Leisure Coolum and Mr Palmer filed a statement of claim with the Queensland Supreme Court seeking declarations and orders in a further attempt to stay the criminal proceedings before the Brisbane Magistrates’ Court.

Palmer Leisure Coolum and Mr Palmer are pleading, among other things, that the prosecution would bring the administration of justice into disrepute by reason of the orders and judgment of the Federal Court of Australia on 23 and 25 November 2020, which resolved the litigation between Palmer Leisure Coolum, TPC and others.

Editor’s note 23:

On 11 June 2021, the Brisbane Magistrates’ Court adjourned the matter for further mention on 17 September 2021.

Editor's note 24:

On 29 June 2021, ASIC and the CDPP filed an application in the proceedings commenced by Palmer Leisure Coolum and Mr Palmer on 1 June 2021 (PLC stay proceedings, refer editor's note 22). The application seeks orders to set aside, stay or alternatively, strike out the PLC stay proceedings.

The application made by ASIC and the CDPP is listed to be heard on 23 August 2021 in the Queensland Supreme Court.

Editor’s note 25:

The application filed by ASIC and the CDPP on 29 June 2021 (Commonwealth application) that was to have been heard on 23 August 2021 (refer editor’s note 24) has been listed for hearing on 22 September 2021.

Editor’s note 26:

The hearing of the application filed by ASIC and the CDPP on 29 June 2021 listed for 22 September 2021 has been vacated and has been listed for a directions hearing on 22 September 2021.

Editor’s note 27:

On 17 September 2021, the Brisbane Magistrates’ Court adjourned the criminal proceedings for further mention on 10 December 2021.

Editor's note 28:

On 20 September 2021, Palmer Leisure Coolum and Mr Palmer filed an Amended Statement of Claim in the PLC Stay proceedings.

Editor’s Note 29:

At the directions hearing held on 22 September 2021 before the Queensland Supreme Court, the Commonwealth Application was listed for hearing on 7 February 2022.

Last updated: 13/02/2019 12:00