Alinta Ltd ACN 119 985 590 - [2007] FCA 938

FEDERAL COURT OF AUSTRALIA
Alinta Ltd ACN 119 985 590 [2007] FCA 938
In the matter of The Australian Gas Light Company (No 2) (2006) 60 ACSR 406 referred to
IN THE MATTER OF ALINTA LIMITED ABN 11 119 985 590
NSD1134 OF 2007
EMMETT J
2 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1134 OF 2007

IN THE MATTER OF ALINTA LIMITED ABN 11 119 985 590

ALINTA LIMITED

ABN 11 119 985 590

Plaintiff

JUDGE:

EMMETT J

DATE OF ORDER:

2 JULY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), the Plaintiff (Alinta) convene:
(a)a meeting (Share Scheme Meeting) of the holders of ordinary shares in Alinta (Alinta Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Share Scheme) substantially in the form set out in annexure A of Exhibit 1; and
(b)a meeting (Option Scheme Meeting) of persons holding options (Alinta Options) to subscribe for ordinary shares in Alinta (Alinta Optionholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Option Scheme) substantially in the form set out in annexure A of Exhibit 1.
(together, the Meetings).

2.The Share Scheme Meeting be held at 10.00am WST (12.00pm AEST), on 15 August 2007 at the Perth Convention Exhibition Centre, 21 Mounts Bay Road, Perth, Western Australia.
3.The Option Scheme Meeting be held on 15 August 2007 directly after a General Meeting following the Share Scheme Meeting has concluded or adjourned, and no earlier than 12.30pm WST (2.30pm AEST) at the Perth Convention Exhibition Centre, 21 Mounts Bay Road, Perth, Western Australia.
4.Pursuant to section 411(1) of the Corporations Act, the explanatory statements for the Share Scheme and the Option Scheme forming part of Exhibit 1 (Booklet) be approved.
5.On or before 16 July 2007 there be despatched by prepaid ordinary post (or in the case of overseas members, by airmail), to the registered address of each Alinta Shareholder appearing in the register of Alinta Shareholders and of each Alinta Optionholder appearing in the register of Alinta Optionholders:
(a)a document substantially in the form or to the effect of the Booklet, and
(b)either or both of the following, as applicable:
(i)a proxy form in respect of the Share Scheme Meeting substantially in the form or to the effect of the proxy form for the Share Scheme Meeting contained in Exhibit 1; and
(ii)a proxy form in respect of the Option Scheme Meeting substantially in the form or to the effect of the proxy form for the Option Scheme Meeting contained in Exhibit 1; and

(c)an election form substantially in the form or to the effect of the election form contained in Exhibit 1; and
(d)a pre-addressed reply paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCA 938
Decision Date: 2 July 2007

CaseChat Overview and Summary

In the Federal Court of Australia, Alinta Ltd ACN 119 985 590 sought court approval for convening meetings of shareholders and option holders to consider and vote on a proposed scheme of arrangement. The dispute involved the company's attempt to restructure its share capital and options to subscribe for shares, necessitating shareholder and option holder approval. The court was tasked with determining whether the proposed schemes met the legal requirements under the Corporations Act 2001 (Cth) for such arrangements.

The court examined several key legal issues, including whether the explanatory statements provided to shareholders and option holders were adequate and whether the procedures for convening and conducting the meetings complied with statutory requirements. Additionally, the court assessed if the proposed voting mechanisms and deadlines for proxy submissions were in line with the Corporations Act and the Federal Court (Corporations) Rules 2000. The court also considered the necessity of specific advertising and notice requirements to ensure proper shareholder and option holder participation.

The Federal Court ruled in favour of Alinta Ltd, granting the orders sought. The court found that the explanatory statements were satisfactory, the proposed meeting procedures complied with the law, and the voting mechanisms and deadlines were appropriate. The court approved the convening of the meetings, the use of explanatory statements, and the advertising and notice requirements. The court also exempted the company from certain procedural requirements of the Federal Court Rules to facilitate the proposed arrangements. The court ordered the immediate implementation of these decisions, setting specific dates and procedures for the meetings and the distribution of relevant documents to shareholders and option holders.

Orders

Orders of the court

1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), the Plaintiff (Alinta) convene:

(a) a meeting (Share Scheme Meeting) of the holders of ordinary shares in Alinta (Alinta Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Share Scheme) substantially in the form set out in annexure A of Exhibit 1; and

(b) a meeting (Option Scheme Meeting) of persons holding options (Alinta Options) to subscribe for ordinary shares in Alinta (Alinta Optionholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Option Scheme) substantially in the form set out in annexure A of Exhibit 1.

(together, the Meetings).

2. The Share Scheme Meeting be held at 10.00am WST (12.00pm AEST), on 15 August 2007 at the Perth Convention Exhibition Centre, 21 Mounts Bay Road, Perth, Western Australia.

3. The Option Scheme Meeting be held on 15 August 2007 directly after a General Meeting following the Share Scheme Meeting has concluded or adjourned, and no earlier than 12.30pm WST (2.30pm AEST) at the Perth Convention Exhibition Centre, 21 Mounts Bay Road, Perth, Western Australia.

4. Pursuant to section 411(1) of the Corporations Act, the explanatory statements for the Share Scheme and the Option Scheme forming part of Exhibit 1 (Booklet) be approved.

5. On or before 16 July 2007 there be despatched by prepaid ordinary post (or in the case of overseas members, by airmail), to the registered address of each Alinta Shareholder appearing in the register of Alinta Shareholders and of each Alinta Optionholder appearing in the register of Alinta Optionholders:

(a) a document substantially in the form or to the effect of the Booklet, and

(b) either or both of the following, as applicable:

(i) a proxy form in respect of the Share Scheme Meeting substantially in the form or to the effect of the proxy form for the Share Scheme Meeting contained in Exhibit 1; and

(ii) a proxy form in respect of the Option Scheme Meeting substantially in the form or to the effect of the proxy form for the Option Scheme Meeting contained in Exhibit 1; and

(d) a pre-addressed reply paid envelope for return of the relevant proxy form.

6. The Chairman of the Meetings be John Howard Akehurst, and in his absence, Michael John Wilkins.

7. The Chairman appointed to the Meetings has the power to adjourn the Meetings in his absolute discretion.

8. A person's entitlement to vote at the Share Scheme Meeting be determined by reference to the register of Alinta Shareholders as at 5.00pm WST (7.00pm AEST) on 13 August 2007.

9. A person's entitlement to vote at the Option Scheme Meeting be determined by reference to the register of Alinta Optionholders as at 5.00pm WST (7.00pm AEST) on 13 August 2007.

10. The number of votes which may be cast by each Alinta Optionholder be equal to the value of the Base Consideration and the APA Distribution (both as defined in the Booklet) after adding back the amount of any Transaction Dividend or capital reduction deducted from them, multiplied by the number of Alinta Options held by that Alinta Optionholder, less the exercise prices of those Alinta Options.

11. The Base Consideration and the APA Distribution be valued on the following basis for the purposes of paragraph 10:

(a) for any part of the Base Consideration or APA Distribution that consists of a cash amount or BBI EPS (as defined in the Booklet), that cash amount or the face value of those BBI EPS;

(b) for any part of the Base Consideration or APA Distribution that consists of securities listed on ASX, the value of those securities based on the volume weighted average price of those securities on ASX over the 5 business day period immediately before 13 August 2007.

12. Alinta Shareholders and Alinta Optionholders be required to lodge any proxy forms to appoint a proxy to vote at the Meetings on their behalf (including any power of attorney under which such forms are signed) or, if voting by attorney, a copy of the instrument effecting the appointment of such attorney, in the manner set out below by no later than 12.00pm WST (2.00pm AEST) on 13 August 2007:

(a) in person, to the office of Computershare Investor Services Pty Limited at Level 2, 45 St Georges Terrace, Perth WA 6000;

(b) by mail, addressed to Computershare Investor Services Pty Limited, GPO Box 242, Melbourne VIC 8060; or

13. All voting at the Meetings be by poll as declared by the Chairman.

14. Alinta advertise the Meetings substantially in the form of Annexure 1 of this Order in The Australian newspaper on or before 24 July 2007.

15. Alinta publish in The Australian newspaper a notice substantially in the form of:

(a) Annexure 2 of this Order on or before 8 August 2007; and

(b) (in the event the Alinta Shareholders approve the Alinta Scheme in accordance with the provisions of section 411(4) of the Corporations Act) Annexure 3 of this Order on or before 16 August 2007,

and Alinta shall otherwise be exempted from compliance with the requirement to publish a notice at least 5 days before the date fixed for the hearing of the application pursuant to rule 3.4 of the Federal Court (Corporations) Rules 2000.

16. Pursuant to section 1319 of the Corporations Act, Alinta be exempted from compliance with the requirements of rule 2.15 of the Federal Court (Corporations) Rules 2000.

17. No person other than the solicitors for the plaintiff and the solicitors for ES & L Pty LTD be permitted to inspect Exhibit 1, the affidavits of Marie McDonald sworn 29 June 2007 and 2 July 2007 or tab 1 of Exhibit PM1 prior to 4 July 2007.

18. The proceeding be stood over to 17 August 2007 at not before 10.30 am before Justice Emmett for the hearing of any application to approve the Share Scheme and the Option Scheme.

19. These Orders to be entered forthwith.

THE COURT DIRECTS THAT:

20. Exhibit 1 remain in the custody of Ms Sonia Tame until 4 pm on 3 July 2007.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1134 OF 2007

ALINTA LIMITED ABN 11 119 985 590 Plaintiff
JUDGE:	EMMETT J
DATE OF ORDER:	2 JULY 2007
WHERE MADE:	SYDNEY