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

Clough Limited applied to the Federal Court of Australia for approval of a scheme of arrangement whereby Murray & Roberts Limited, a South African public company and majority shareholder of Clough Limited, would acquire all shares in Clough Limited. This was the second hearing of the application, with the first hearing resulting in an order for a meeting of Clough Limited's members to consider the scheme. The members approved the scheme, and Clough Limited now sought Court approval of the scheme.

The Court was required to determine whether the scheme complied with the requirements of the Corporations Act 2001 (Cth) and whether it was fair and reasonable. The Court also had to consider whether a procedural irregularity in the notice of the meeting could invalidate the approval of the scheme.

The Court found that the statutory majorities required for approval of the scheme had been achieved. The Court accepted that there was a procedural irregularity in the notice of the meeting, but held that it was not substantial enough to invalidate the meeting or the approval of the scheme. The Court noted that the defect did not impact the integrity of the resolution passed at the meeting, and that there was no substantial injustice caused by the irregularity. The Court also found that the scheme was fair and reasonable based on the large majorities obtained and expert evidence to that effect.

The Court approved the scheme of arrangement and granted an order exempting Clough Limited from complying with a requirement to annex the Court's order to its constitution. The Court noted that Clough Limited would become a wholly-owned subsidiary of Murray & Roberts Limited after the scheme, so there was no need for the exemption order.

In summary, the Court found that the scheme complied with the law, the approval of the scheme was not invalidated by a procedural irregularity, and the scheme was fair and reasonable. The Court approved the scheme and made the orders sought by Clough Limited.