Ellendale Resources NL, in the matter of Ellendale Resources NL [No 2]

[2008] FCA 806

FEDERAL COURT OF AUSTRALIA

Ellendale Resources NL, in the matter of Ellendale Resources NL [No 2]
[2008] FCA 806  

IN THE MATTER OF ELLENDALE RESOURCES NL (ACN 061 836 708)
ELLENDALE RESOURCES NL (ACN 061 836 708) 

WAD 37 OF 2008

GILMOUR J
23 MAY 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 37 OF 2008

IN THE MATTER OF ELLENDALE RESOURCES NL
(ACN 061 836 708)

ELLENDALE RESOURCES NL (ACN 061 836 708) Plaintiff
JUDGE:	GILMOUR J
DATE OF ORDER:	23 MAY 2008
WHERE MADE:	PERTH

THE COURT DECLARES THAT:

1.That the notice of meeting given to members by post on 17 April 2008 is not invalid by reason of 27 days notice of the meeting having been given to the members.

THE COURT ORDERS THAT:

2.The schemes of arrangement between:

(a)the plaintiff and its members; and

(b)the plaintiff and its option holders,

being Appendix 2 and 3 to the scheme’s booklet (which incorporates the explanatory statement) which is included in “DMM-6” to the affidavit of David Maxwell McArthur, sworn on 25 February 2008 and agreed to by resolutions of the members and option holders of the plaintiff at meetings of its members and option holders on 15 May 2008 be approved. 

3.The plaintiff be exempted from compliance with s 411(11) of the Act.

4.An office copy of this order be lodged with the Australian Securities and Investment Commission within 14 days.

5.This order have effect from the date of this order. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 37 OF 2008

IN THE MATTER OF ELLENDALE RESOURCES NL
(ACN 061 836 708)

ELLENDALE RESOURCES NL (ACN 061 836 708)
Plaintiff

JUDGE:	GILMOUR J
DATE:	23 MAY 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. I have read the affidavits filed in support of the application. I have also had the benefit of detailed written submissions by counsel for the plaintiff and these have been supplemented by some short, additional, oral submissions this morning. I am satisfied that all of the conditions required by s 411 of the Corporations Act 2001 (Cth) (“the Act”) have been satisfied. In particular I am satisfied that the requisite majority of members and option holders have acted not only regularly but in good faith and not in the pursuit of some illegitimate purpose.

2. I am also satisfied that the scheme in each case is fair and reasonable and that the orders made by the Court on 8 April 2008 have been complied with, other than in relation to service of the notice of the members and option holders’ meetings. In each case only 27 days instead of 28 days notice was given. The plaintiff seeks remedial orders under s 1322(4)(a) or alternatively s 1322(4)(d) of the Act. I am satisfied on the evidence that it is appropriate to make an order under s 1322(4)(a). I am satisfied, as I must be that the conditions under s 1322(6) have been met and in particular I am satisfied that no substantial injustice has been or is likely to be caused to any person.

3. I will now deal with the position of the Australian Securities and Investment Commission (“ASIC”). ASIC advised previously that it did not wish to attend the convening application. Thereafter, notice was given to ASIC that the plaintiff intended to apply for an order approving the scheme, not later than 19 May 2008. I am satisfied in all the circumstances that ASIC has had a reasonable time to examine the terms of the proposed schemes and make submissions to the Court. In that respect, the requirements of s 411(2) are satisfied.

4. Furthermore, ASIC has provided written notice that it does not intend to appear at today’s hearing and that it had no objection to the scheme’s arrangement proposed by the plaintiff.  I will make the following declaration and the following orders. 

   The Court Declares that:

   (1)The notice of meeting given to members by post on 17 April 2008 is not invalid by reason of 27 days notice of the meeting having been given to the members.

   The Court Orders that:

   (2)The schemes of arrangement between

   (a)the plaintiff and its members; and

   (b)the plaintiff and its option holders,

   being appendix 2 and 3 to the scheme’s booklet (which incorporates the explanatory statement) which is included in “DMM-6” to the affidavit of David Maxwell McArthur, sworn on 25 February 2008 and agreed to by resolutions of the members and option holders of the plaintiff at meetings of its members and option holders on 15 May 2008 be approved. 

   (3)The plaintiff be exempted from compliance with s 411(11) of the Act.

   (4)An office copy of this order be lodged with the Australian Securities and Investment Commission within 14 days.

   (5)This order have effect from the date of this order. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        23 May 2008

Counsel for the Plaintiff:	Mr J G Young
Solicitor for the Plaintiff:	Steinepreis Paganin

Date of Hearing:	23 May 2008
Date of Judgment:	23 May 2008