Airtrain Holdings Limited, in the matter of Airtrain Holdings Limited

Airtrain Holdings Limited, an unlisted public company, sought orders to convene meetings of its shareholders to consider and potentially approve a scheme of arrangement under which the entire issued share capital of Airtrain would be acquired by USS Axle Pty Ltd, a proprietary company wholly owned by Universities Superannuation Scheme Limited. The application came before the Federal Court of Australia, where Justice Bromberg was tasked with determining whether the proposed scheme met the necessary legal criteria and whether the company could proceed with convening shareholder meetings.

The primary legal issues revolved around the appropriateness of the scheme of arrangement, including whether separate meetings should be held for each class of shareholders, and whether the explanatory statement provided was adequate for all shareholders. Other considerations included the absence of an independent expert's report, the inclusion of a break fee, and the application of s 411(17) of the Corporations Act 2001 (Cth). The Court also needed to determine whether the scheme would lead to a substantial change in control of the company, as required by the Act.

Justice Bromberg found that the scheme was appropriate for approval and that separate meetings for each class of shareholders were unnecessary because there was sufficient commonality of interest among the shareholders. The Court held that an identical explanatory statement could be distributed to all shareholders despite the differing class rights. The Court also noted that the presence of a break fee and the lack of an independent expert's report did not necessarily invalidate the scheme. While the application of s 411(17) was left for further consideration, the Court proceeded to approve the explanatory statement and ordered the convening of shareholder meetings.

The Court made several detailed orders to facilitate the convening of the shareholder meetings, including the distribution of the explanatory statement, the timing and location of the meetings, and the manner in which notices and proxy forms were to be sent to shareholders. The Court also exempted Airtrain from certain procedural requirements of the Federal Court Rules 2000 (Cth) and scheduled the next hearing to consider final approval of the scheme. The Court's decision allowed Airtrain to move forward with the proposed acquisition by USS Axle, pending further hearings.