Blackmores Limited, in the matter of Blackmores Limited (No 2)

[2023] FCA 850

FEDERAL COURT OF AUSTRALIA

Blackmores Limited, in the matter of Blackmores Limited (No 2) [2023] FCA 850  

File number(s):

NSD 435 of 2023

Judgment of:

JACKMAN J

Date of judgment:

20 July 2023

Catchwords:

CORPORATIONS – scheme of arrangement – second Court hearing – application for orders under s 411 of the Corporations Act 2001 (Cth) approving the proposed scheme of arrangement – where proposed scheme approved at scheme meeting – letter of no objection from ASIC provided – all statutory requirements satisfied – scheme approved

Legislation:

Corporations Act 2001 (Cth) s 411

Cases cited:

Re Blackmores Limited [2023] FCA 624

Re Seven Network [2010] FCA 400; (2010) 77 ACSR 701

Re Vita Group Ltd (No 2) [2023] FCA 623

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

10

Date of hearing:

20 July 2023

Counsel for the Plaintiff:

Mr J R Williams SC

Solicitor for the Plaintiff:

Herbert Smith Freehills

Counsel for the Bidder:

Mr S K Dharmananda SC

Solicitor for the Bidder:

Thomson Geer

ORDERS

NSD 435 of 2023

IN THE MATTER OF BLACKMORES LIMITED

BLACKMORES LIMITED ABN 35 009 713 437

Plaintiff

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	20 JULY 2023

THE COURT ORDERS THAT:

1.Pursuant to paragraph 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the Plaintiff and holders of fully paid ordinary shares in the Plaintiff (which is Exhibit 2 in this proceeding) (Scheme), be approved.

2.Pursuant to subsection 411(12) of the Corporations Act, the Plaintiff be exempt from compliance with subsection 411(11) of the Corporations Act in relation to the Scheme.

3.An office copy of these orders be lodged with the Australian Securities and Investments Commission.

4.These orders be entered forthwith.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

JACKMAN J:

1. This is the second Court hearing of the application by Blackmores Limited (Blackmores) pursuant to s 411 of the Corporations Act 2001 (Cth) (the Act) for orders approving a proposed scheme of arrangement between Blackmores and its members holding fully paid ordinary shares (Blackmores Shareholders) (the Scheme).

2. On 8 June 2023, I made orders for the convening of the Scheme Meeting of Blackmores Shareholders for the purpose of considering, and, if thought fit, agreeing to the Scheme, and approving an explanatory statement to be distributed to Blackmores Shareholders. The Scheme Meeting was held on 18 July 2023. Blackmores Shareholders approved the Scheme by both a majority in number, being 86.74% by headcount, and by more than 75% of the votes cast, being approximately 96.85% of shares by value.

3. The evidence before me at the second Court hearing follows closely the guidance which I gave in Re Vita Group Ltd (No 2) [2023] FCA 623. It comprises the following evidence, in addition to the evidence led at the first Court hearing on 8 June 2023.

4. In the first place, Ms Helen Mediati has provided a second affidavit, sworn on 19 July 2023, giving the following evidence:

   (a)a brief statement as to the registration of the scheme booklet with ASIC;

   (b)brief evidence in one paragraph as to the dispatch of materials to Blackmores Shareholders;

   (c)the determination by the board of Blackmores to pay a fully franked dividend prior to the implementation of the Scheme, and disclosure of that determination by ASX announcement on the same day;

   (d)the publication of an ASX announcement giving notice of the second Court hearing, in lieu of a newspaper advertisement to that effect; and

   (e)brief evidence as to the holding of the Scheme Meeting and the passing of the Scheme resolution, including a copy of the poll report, but not including evidence of voter turnout or of questions raised and answers given at the meeting.

5. The plaintiff has also tendered a letter from ASIC confirming that it has no objection to the Scheme, in satisfaction of the requirements of s 411(17) of the Act. The plaintiff also tendered a conditions precedent certificate evidencing satisfaction or waiver of the conditions precedent to the Scheme.

6. The applicable principles that apply to the role of the Court in approving a scheme of arrangement under s 411(4)(b) of the Act are well established and were set out extensively by Jacobson J in Re Seven Network [2010] FCA 400; (2010) 77 ACSR 701 at [31]-[45].

7. As indicated above, the Scheme resolution was supported overwhelmingly by Blackmores Shareholders at the Scheme Meeting with well over 50% by headcount, and well over 75% by value, voting in favour of the Scheme. All other statutory requirements have been satisfied.

8. I referred in my reasons at the first Court hearing to the special dividend which was proposed to be announced by the time of the second Court hearing. In the event, on 13 July 2023, the Blackmores board determined, subject to the Scheme becoming effective, to pay a fully franked special dividend of $3.29 per Blackmores share held at 7 pm on 26 July 2023 (Special Dividend). That determination was disclosed to the market by ASX announcement on the same day. Subject to the Scheme becoming effective, in addition to the Special Dividend, Blackmores Shareholders will receive $91.71 cash per Blackmores share on the implementation date for the Scheme, which is expected to be 10 August 2023, in respect of Blackmores shares held at 7 pm on 2 August 2023.

9. I note that the time by which proxy forms had to be returned or lodged was 11 am on 16 July 2023. Accordingly, as matters have turned out, shareholders were informed of the determination of the Special Dividend before that time, and not merely before the second Court hearing, although I do not regard that as a matter of any particular significance: see Re Blackmores Limited [2023] FCA 624 at [31].

10. In my view, there is no reason why the Scheme should not be approved. I note that the application has been conducted with commendable efficiency both in terms of the evidence provided, and also the succinctness of the written and oral submissions for the plaintiff.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Associate:

Dated:       26 July 2023