FEDERAL COURT OF AUSTRALIA
Investa Properties Limited [2007] FCA 1388
Corporations Act 2001 (Cth), s 411
Investa Properties Limited, in the matter of Investa Properties Limited [2007] FCA 1104 related
IN THE MATTER OF INVESTA PROPERTIES LIMITED (ABN 54 084 407 241)
NSD 1316 OF 2007GYLES J
27 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1316 OF 2007
IN THE MATTER OF
INVESTA PROPERTIES LIMITED (ABN 54 084 407 241)
Plaintiff
JUDGE:
GYLES J
DATE:
27 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 18 July last, Lindgren J convened a scheme meeting of the members of Investa Properties Limited (ABN 54 084 407 241) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement (Investa Properties Limited, in the matter of Investa Properties Limited [2007] FCA 1104. The convening of that meeting involved also the holding of a meeting of unit holders as members were the holders of the stapled securities consisting of shares and units. His Honour looked carefully at the material before him and was satisfied with the formalities and also considered the contents of the draft scheme booklet to be forwarded to shareholders. Lindgren J was satisfied that it was an appropriate case for the decision to be made on a commercial basis by those involved. His Honour noted some aspects of the scheme of arrangement to which I will briefly return.
I am satisfied that the meetings took place as convened and that the results were favourable to approval of the scheme, in fact overwhelmingly so. I am satisfied that the meeting was properly and validly called in relation to the notice of meeting and the advertisement of that meeting. I am satisfied that there was proper registration of the matter with the Australian Securities and Investments Commission (ASIC) and I am satisfied that ASIC has no objection to the orders sought. I note that ASIC had granted the relief referred to in Lindgren J’s decision prior to the orders being made. Evidence has been given as to the satisfaction of the conditions precedent to the implementation of the scheme and the relevant certificates to that effect from each party have been tendered, together with certificates of warranty.
Disclosure has been made of a change to remuneration which took place after the meeting and I am satisfied that that is not a topic which causes any need for further disclosure to the holders of the securities. The form of the scheme, as I have said, has been considered by Lindgren J and approved for consideration. It would be a very rare case that, on an ex parte application, a judge, considering confirmation after approval by members, would take a different view from that of the judge convening the meeting. There is no opposition today and there is no occasion to differ from the view his Honour has expressed. That being so, the exact effect and status of the express provisions of schemes dealing with the transfer of shares being free of encumbrances and charges and so on, and the exact legal analysis and effect of the warranties included in the schemes, may be considered, if necessary, on another day. In my opinion, there is no necessity to raise any question about the effect of those clauses in the present case.
I am satisfied that all of the conditions that are appropriate have been met and I make the orders set forth in the draft short minutes of order. I should add that, in my opinion, this is an appropriate case for exemption from compliance with s 411(11), pursuant to s 411(12) of the Corporations Act 2001 (Cth).
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 3 September 2007
Counsel for the Plaintiff: Mr TF Bathurst QC Solicitor for the Plaintiff: Gilbert + Tobin Counsel for the Acquirer, Post Bidco Pty Limited: Mr MB Oakes SC Solicitor for the Acquirer, Post Bidco Pty Limited: Minter Ellison Date of Hearing: 27 August 2007 Date of Judgment: 27 August 2007
- AGLC
- Investa Properties Limited [2007] FCA 1388
- Case
- [2007] FCA 1388
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the scheme of arrangement should be approved and whether certain procedural requirements had been met. Key issues included whether the meetings of unit holders were properly convened and conducted, whether all necessary disclosures had been made, whether the Australian Securities and Investments Commission (ASIC) had any objections, and whether all conditions precedent to the scheme's implementation had been satisfied. Additionally, the court considered whether the scheme met the requirements of the Corporations Act 2001 (Cth), particularly in relation to the transfer of shares free of encumbrances and charges.
The court, having reviewed the material and evidence presented, concluded that all procedural requirements had been met. The scheme meeting was properly convened, and the results of the meeting overwhelmingly favoured approval of the scheme. The court was satisfied that there was proper registration with ASIC, and ASIC had no objections to the scheme. The conditions precedent to the implementation of the scheme had been met, and relevant certificates had been tendered. The court also determined that any changes to remuneration post-meeting did not necessitate further disclosure. Consequently, the court approved the scheme of arrangement and granted the orders sought by the plaintiff.
The final orders of the court confirmed the approval of the scheme of arrangement, exempted the scheme from compliance with certain sections of the Corporations Act 2001 (Cth), and authorised the implementation of the scheme as per the draft minutes of order. The court's decision was based on the satisfaction of all procedural and legal requirements, ensuring the scheme could proceed as intended.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GYLES J
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