Achieve Foundation Limited v ACNewCo Limited; In the Matter of Achieve Foundation Limited and The Crowle Foundation Limited

In the matter of Achieve Foundation Limited and The Crowle Foundation Limited, the court considered the approval of schemes of arrangement involving the merger of the two charitable foundations with ACNewCo Limited. The dispute centred on the interpretation of the term "property" in section 413 of the Corporations Act 2001 (Cth) and whether it included future bequests made to the pre-merger foundations that remained in existence post-merger. The court was tasked with determining if these bequests could be directed to the new entity, ACNewCo, under the terms of the scheme. The court held that the term "property" did indeed encompass such future bequests, thus allowing for orders to be made to direct these bequests to ACNewCo.

The reasoning of the court hinged on the broad interpretation of "property" as used in section 413 of the Corporations Act, which was found to include future assets and bequests of the merging entities. This interpretation supported the argument that the court could approve the schemes to direct future bequests to ACNewCo, aligning with the intentions of the merging foundations as expressed in the schemes. The court’s decision was based on the premise that the legislative intent behind section 413 allows for comprehensive property transfers to ensure the continuity of the corporate entities’ obligations and benefits post-merger. The approval of the schemes was contingent upon the members' approval and the court's satisfaction that the schemes were fair and equitable.