HPAL Limited - [2007] FCA 1570

FEDERAL COURT OF AUSTRALIA
HPAL Limited [2007] FCA 1570
CORPORATIONS – scheme of arrangement – no novel jurisdictional or procedural issues – performance risk addressed – break fee appropriate
Corporations Act 2001 (Cth) s 411(1)
APN News & Media Limited [2007] FCA 770 followed
Investa Properties Limited [2007] FCA 1104 referred to
Peplin Limited [2007] FCA 1387 referred to
Re Permanent Trustee Co Ltd (2002) 43 ASCR 601 referred to
IN THE MATTER OF HPAL LIMITED ABN 74 087 783 060
NSD 1696 OF 2007
JACOBSON J
5 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

1696 OF 2007

HPAL Limited (ABN 74 087 783 060)
Plaintiff

JUDGE:

Jacobson J

DATE OF ORDER:

5 September 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1Pursuant to section 411(1) of the Corporations Act 2001 (Cth):
(a)the Plaintiff ('HPA') convene a meeting of its shareholders for the purpose of considering and if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between HPA and its shareholders (‘the Scheme’), being the scheme substantially in the form of the draft contained in Schedule 4 of the booklet containing the explanatory statement in relation to the Scheme, being Exhibit A (‘the Explanatory Memorandum’);
(b)the meeting referred to in subparagraph (a) ('Meeting of Shareholders') be held on 17 October 2007 at the Museum of Sydney, Cnr Phillip and Bridge Streets, Sydney 2000, in the state of New South Wales at 9:30am;
(c)Ed Hoppe, or failing him, Rod Atfield be chairperson of the Meeting of Shareholders;
(d)the chairperson appointed to the Meeting of Shareholders has the power to adjourn the meeting in his absolute discretion;
(e)the explanatory statement in the Explanatory Memorandum be approved for distribution to HPA shareholders; and
(f)the Explanatory Memorandum to be despatched to each of the shareholders of HPA be in the form or to the effect of Exhibit A and may be posted by pre-paid post, in the case of a shareholder of HPA whose registered address is outside the country by pre-paid post or despatched by air courier for overseas pre-paid post.

2Regulations 5.6.12 and 5.6.14 to 5.6.36A of the Corporations Regulations shall not apply to the Meeting of Shareholders.
3HPA publish a Notice of Hearing of any application to approve the Scheme in the form of Annexure 'A' hereto no later than 18 October 2007 and HPA is relieved from compliance with Rule 3.4 of the Federal Court (Corporations) Rules 2000 to the extent necessary.
4This proceeding be stood over to 18 October 2005 at 2.15pm before Justice Jacobson for the hearing of any application to approve the Scheme.
5There be liberty to restore on 2 days' notice.
6These Orders be entered forthwith.

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

ANNEXURE A
HPAL LIMITED
ABN 74 087 783 060
NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT
TO…

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 HPAL Limited

Details

AGLC: HPAL Limited [2007] FCA 1570
Case: [2007] FCA 1570
Decision Date: 5 September 2007

CaseChat Overview and Summary

HPAL Limited is a case involving the plaintiff, HPA, and its shareholders. The dispute pertains to a proposed scheme of arrangement between HPA and its shareholders, with the primary focus on the convening of a shareholders' meeting to consider and potentially approve the scheme. The matter was heard in the Federal Court of Australia. The legal issues before the court centred around the procedural requirements for the convening of a shareholders' meeting under the Corporations Act 2001 and the appropriate manner in which an explanatory statement should be distributed to shareholders. Additionally, the court had to consider whether certain regulations under the Corporations Regulations should apply to the meeting.

The court deliberated on whether the procedural steps outlined in the application were sufficient and in compliance with the statutory requirements. It was determined that the plaintiff had adequately demonstrated the need for the convening of a meeting to consider the proposed scheme of arrangement. The court found that the proposed meeting location, timing, and method of distribution of the explanatory statement were appropriate and met the statutory criteria. Furthermore, the court ruled that certain regulations should not apply to the meeting, allowing for a more flexible approach to the convening and conduct of the meeting. The court also addressed the procedural matter of notice and standing over the proceeding to allow for the hearing of any application to approve the scheme.

The court issued orders that mandated the convening of the shareholders' meeting on a specified date and location, appointed a chairperson, and allowed for the distribution of the explanatory statement in the prescribed form. Additionally, the court directed that certain regulations should not apply to the meeting and mandated the publication of a notice of hearing for any application to approve the scheme. The court also set the matter over to a future date to hear any such applications. The orders were to be entered forthwith, ensuring that the process for considering the scheme of arrangement could proceed in a timely manner.

Orders

Orders of the court

1 Pursuant to section 411(1) of the Corporations Act 2001 (Cth):

(a) the Plaintiff ('HPA') convene a meeting of its shareholders for the purpose of considering and if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between HPA and its shareholders (‘the Scheme’), being the scheme substantially in the form of the draft contained in Schedule 4 of the booklet containing the explanatory statement in relation to the Scheme, being Exhibit A (‘the Explanatory Memorandum’);

(b) the meeting referred to in subparagraph (a) ('Meeting of Shareholders') be held on 17 October 2007 at the Museum of Sydney, Cnr Phillip and Bridge Streets, Sydney 2000, in the state of New South Wales at 9:30am;

(d) the chairperson appointed to the Meeting of Shareholders has the power to adjourn the meeting in his absolute discretion;

(e) the explanatory statement in the Explanatory Memorandum be approved for distribution to HPA shareholders; and

(f) the Explanatory Memorandum to be despatched to each of the shareholders of HPA be in the form or to the effect of Exhibit A and may be posted by pre-paid post, in the case of a shareholder of HPA whose registered address is outside the country by pre-paid post or despatched by air courier for overseas pre-paid post.

2 Regulations 5.6.12 and 5.6.14 to 5.6.36A of the Corporations Regulations shall not apply to the Meeting of Shareholders.

3 HPA publish a Notice of Hearing of any application to approve the Scheme in the form of Annexure 'A' hereto no later than 18 October 2007 and HPA is relieved from compliance with Rule 3.4 of the Federal Court (Corporations) Rules 2000 to the extent necessary.

4 This proceeding be stood over to 18 October 2005 at 2.15pm before Justice Jacobson for the hearing of any application to approve the Scheme.

5 There be liberty to restore on 2 days' notice.

6 These Orders be entered forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1696 OF 2007

HPAL Limited (ABN 74 087 783 060) Plaintiff
JUDGE:	Jacobson J
DATE OF ORDER:	5 September 2007
WHERE MADE:	SYDNEY