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Firefly Resources Limited [No 2]

Firefly Resources Limited [No 2]

Case [2021] WASC 492 16 March 2023

Corporate Governance

Scheme of Arrangement

Public Policy

Statutory Compliance

Corporate Law & Governance

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FIREFLY RESOURCES LIMITED [No 2] [2021] WASC 492
CORAM:   STRK J
HEARD:   1 NOVEMBER 2021
DELIVERED          :   1 NOVEMBER 2021
PUBLISHED           :   16 MARCH 2023
FILE NO/S:   COR 143 of 2021

EX PARTE
FIREFLY RESOURCES LIMITED
Plaintiff
GASCOYNE RESOURCES LIMITED
Interested Party
WESTGOLD RESOURCES LIMITED
Interested Party
ROBERT JEWSON
Interested Party
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Interested Party

Catchwords:

Corporations law - Scheme of arrangement - Proposed share acquisition - Application for orders approving a scheme under the Corporations Act 2001 (Cth) s 411(4)(b) - Whether the scheme offends public policy - Whether the scheme implementation deed contravened the Corporations Act 2001 (Cth) s 602

Legislation:

Corporations Act 2001 (Cth)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	A J Papamatheos and S P Tomasich
Gascoyne Resources Limited	:	J Sippe
Westgold Resources Limited	:	J M Healy
Robert Jewson	:	B Dharmananda SC & S Gibson
Australian Securities and Investments Commission	:	T Winters

Solicitors:

Plaintiff	:	HWL Ebsworth Lawyers
Gascoyne Resources Limited	:	Herbert Smith Freehills
Westgold Resources Limited	:	Hopgood Ganim
Robert Jewson	:	Thomson Geer
Australian Securities and Investments Commission	:	Australian Securities and Investment Commission

Case(s) referred to in decision(s):

APN News & Media Ltd, in the matter of APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400
Attorney General of the Commonwealth v Alinta [2008] HCA 2; [2008] 233 CLR 542
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Firefly Resources Limited [2021] WASC 376
Gnych v Polish Club Ltd [2015] HCA 23; (2015) 255 CLR 414
Mincom Ltd v EAM Software Finance Pty Ltd [2007] QSC 037; (2007) 61 ACSR 266
Phosphate Co-operative Co of Australia Ltd v Shears (No 3) [1989] VR 665; (1988) 14 ACLR 323; (1988) 6 ACLC 1046
Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Advance Bank Australia Ltd (1997) 136 FLR 281
Re Arthur Yates & Co Ltd [2001] NSWSC 40; (2001) 36 ACSR 758
Re Austral Coal (No 2 & 2R) [2005] ATP 13; (2005) 55 ACSR 60
Re Bolnisi Gold NL (No 2) [2007] FCA 2078; (2007) 165 FCR 45
Re Bolnisi Gold NL [2007] FCA 1668
Re Cannpal Animal Therapeutics Ltd; Ex parte Cannpal Animal Therapeutics Ltd [No 2] [2021] WASC 83
Re Cascade Pools Australia Pty Ltd (1985) 9 ACLR 995
Re Coles Group (No 2) [2007] VSC 523; (2007) 215 FLR 411
Re Consolidated Minerals Ltd 03 [2007] ATP 25; (2007) 25 ACLC 1729
Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358
Re Egnia Pty Ltd (in liq) (1991) 7 WAR 322; (1991) 6 ACSR 640
Re Galaxy Resources Ltd; Ex parte Galaxy Resources Ltd [No 2] [2021] WASC 314
Re International Goldfields Ltd

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.

Continue reading Firefly Resources Limited [No 2]

Details

AGLC: Firefly Resources Limited [No 2] [2021] WASC 492
Case: [2021] WASC 492
Decision Date: 16 MARCH 2023

CaseChat Overview and Summary

Firefly Resources Limited sought orders to approve a proposed scheme of arrangement involving the acquisition of shares in the company. The application was made under section 411(4)(b) of the Corporations Act 2001 (Cth). The primary dispute centred on whether the scheme contravened public policy and if the implementation deed was inconsistent with section 602 of the Corporations Act 2001 (Cth). The court was tasked with determining the validity of the scheme and the legality of the actions proposed by the parties involved.

The legal issues the court needed to address included whether the proposed scheme of arrangement contravened public policy, as it involved the acquisition of shares in a listed company, and whether the scheme implementation deed complied with section 602 of the Corporations Act 2001 (Cth). The court also had to consider the fairness and appropriateness of the scheme in light of the rights of minority shareholders and the regulatory framework governing corporate arrangements.

In examining the application, the court found that the proposed scheme did not offend public policy. It considered that the scheme was designed to facilitate the acquisition of shares in a manner consistent with the protections afforded to shareholders under the Corporations Act 2001 (Cth). Additionally, the court concluded that the scheme implementation deed did not contravene section 602, as it was compliant with the statutory requirements. The court emphasised that the scheme was fair and appropriate, taking into account the interests of all shareholders, including minorities.

The court granted the orders sought by Firefly Resources Limited, approving the proposed scheme of arrangement. The decision confirmed that the scheme was lawful and in compliance with the relevant statutory provisions, ensuring that the acquisition of shares would proceed as intended.

Orders