In the matter of Washington H Soul Pattinson & Co Ltd

[2013] NSWSC 2038

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Washington H Soul Pattinson & Co Ltd [2013] NSWSC 2038

Hearing dates:

4 November 2013

Decision date:

04 November 2013

Jurisdiction:

Equity Division - Corporations List

Before:

Brereton J

Decision:

1) Order made under s 1322(4)(d) of Corporations Act extending time under s 249D(5) of the Act for the directors of Washington H Soul Pattinson & Co Ltd to call the general meeting requested by or on behalf of the defendants by requisition dated 23 October 2013 until 24 January 2014.

2) Order made under Corporations Act s 1322(4)(d) that the time under s 249D(5) of the Act for Washington H Soul Pattinson & Co Ltd to hold the general meeting requested by or on behalf of the defendants by requisition dated 23 October 2013 be extended until and including 28 February 2014.

Catchwords:

CORPORATIONS - meetings - where company sought order under s 1322(4)(d) extending the time prescribed by s 249D(5) for the calling and holding of a requisitioned meeting - where extension to secure adequate time for the completion of necessary preparation for the meeting - time for calling and holding meeting extended

Legislation Cited:

(Cth) Corporations Act 2001 s 249D, s 1322(4)(d)

Cases Cited:

NRMA Insurance Group Ltd v Spragg [2001] NSWSC 381; (2001) 38 ACSR 174
NRMA Insurance Ltd v Carroll [1999] NSWSC 1022; (1999) 32 ASCR 655
NRMA Ltd v Scandrett [2002] NSWSC 1123 (2002); 43 ACSR 401

Category:

Principal judgment

Parties:

Washington H Soul Pattinson & Co Ltd (plaintiff)
MHC Fund Services A Pty Limited (first defendant)
MHC Fund Services B Pty Limited (second defendant)
M.H Carnegie & Co. Pty Limited (third defendant)
RBC Investor Services Australia Nominees Pty Limited (fourth defendant)
Perpetual Investment Management Limited (fifth defendant)

Representation:

Counsel:
C R Newlinds SC (plaintiff)
A Leopold SC (defendant)
Solicitors:
Baker McKenzie (plaintiff)
Watson Mangioni (defendants)

File Number(s):

2013/330562

Judgment - EX TEMPORE

1. HIS HONOUR: By originating process filed on 1 November 2013 and made returnable pursuant to an abridgment of time for service today, the plaintiff seeks the following relief:

(1) An order under s 1322(4)(d) of the Corporations Act extending time under s 249D(5) of the Corporations Act and the directors of Washington H Soul Pattinson & Co Ltd to call the general meeting requested by or on behalf of the defendants by requisition dated 23 October 2013 until 24 January 2014.

(2) An order under Corporations Act s 1322(4)(d) that the time under s 249D(5) of the Corporations Act for Washington H Soul Pattinson & Co Ltd to hold the general meeting requested by or on behalf of the defendants by requisition dated 23 October 2013 be extended until and including 28 February 2014.

1. The background can be shortly stated. The plaintiff company received a requisition made under (Cth) Corporations Act 2001, s 249D, by the defendant shareholders on 23 October 2013. Receipt of that requisition engaged s 249D(5) so as to require the plaintiff's directors to call the requisitioned meeting by 13 November and to hold that meeting by 23 December 2013. The resolutions proposed in the requisition involved inter alia, a selective reduction of capital and in specie distribution to shareholders. They are supported by a shareholder meeting booklet issued by the defendants on 23 October 2013, which is a substantial document.

1. The plaintiff's evidence establishes that to consider that report and finalise the directors' recommendations, to prepare and finalise an explanatory statement to accompany the notice of meeting, to approve the notice of meeting and accompanying documents, and thereafter to have the notice of meeting and explanatory statement and the requisite independent expert's report typeset printed and dispatched, will take a period substantially longer than that allowed by s 249D(5), and will then intersect the Christmas vacation period.

1. The defendants do not oppose the extensions of time sought by the plaintiff in those circumstances. The power of the Court to extend time in such circumstances has been referred to in NRMA Insurance Ltd v Carroll [1999] NSWSC 1022; (1999) 32 ASCR 655, [16], NRMA Insurance Group Ltd v Spragg [2001] NSWSC 381; (2001) 38 ACSR 174 and NRMA Ltd v Scandrett [2002] NSWSC 1123 (2002); 43 ACSR 401, [61].

1. I make order 1 in the originating process, namely an order under s 1322(4)(d) of the Corporations Act extending time under s 249D(5) of the Corporations Act for the directors of Washington H Soul Pattinson & Co Ltd to call the general meeting requested by or on behalf of the defendants by requisition dated 23 October 2013 until 24 January 2014.

1. I order pursuant to Corporations Act s 1322(4)(d) that the time under s 249D(5) of the Corporations Act for Washington H Soul Pattinson & Co Ltd to hold the general meeting requested by or on behalf of the defendants by requisition dated 23 October 2013 be extended until and including 28 February 2014.

1. I reserve liberty to apply in the event of any difficulty arising in the implementation of these orders. The exhibits may be returned.

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