ACCC awaits confirmation of Toll's intention to proceed with takeover offer for Patrick Corporation

The Australian Competition and Consumer Commission is surprised and concerned by Toll Holdings Limited’s news release of 1 February 2006, ACCC Chairman, Mr Graeme Samuel, said today.

"The ACCC believes that Toll has not fully represented the nature and substance of the communications between Toll and the ACCC, through their respective legal advisers, since 25 January when the ACCC announced its intention to launch proceedings against Toll to prevent its bid for Patrick Corporation Limited.

"In order that the market might be fully informed, the ACCC is releasing copies of its written communication to Toll's legal advisers. The ACCC had not received a satisfactory response in relation to any of the matters referred to in this correspondence.

"The ACCC's lawyers, as recently as 1 February 2006, wrote to Toll's advisers seeking confirmation of Toll's intention to proceed with the takeover of Patrick, in the event that it received a favourable decision from the Federal Court. This confirmation became necessary because, in correspondence with the ACCC's lawyers, Toll specifically referred to the possibility that it would let its bid lapse. Any proceedings conducted in circumstances where Toll no longer has a current takeover offer open raises significant public policy and legal issues.

"Before we go to court we need to know that there is either a live bid or that Toll intends to relaunch its bid for Patrick, on substantially identical terms, in the future”, Mr Samuel said. "If Toll no longer intends to proceed with its bid for Patrick, either now or in the future, we need to know so that the matter before the court is not simply hypothetical. Any court action over a completely hypothetical merger would just be a waste of court time and public money.

"The ACCC will always seek to have section 50 [mergers] matters dealt with expeditiously. Since the ACCC announced its intention to commence proceedings against Toll on 25 January, up to the date of Toll’s news release of 1 February, just four business days have elapsed.

"The ACCC does not think it unreasonable to seek satisfactory responses from Toll in relation to the matters it has raised in its correspondence, prior to the issue of court proceedings, for the reasons outlined above.

"The ACCC regrets having to issue such public statements. However, due to the seriousness of the allegations in Toll's news release of 1 February 2006 and the fact that Toll chose to make a public statement while discussions concerning these matters were still ongoing, the ACCC considers that it must take this step".