Legrand Australia Pty Ltd v HPM Industries Pty Ltd (No 2)

[2009] FCA 1239

FEDERAL COURT OF AUSTRALIA

Legrand Australia Pty Ltd v H.P.M. Industries Pty Ltd;
in the matter of Legrand Australia Pty Ltd (No 2) [2009] FCA 1239

IN THE MATTER OF LEGRAND AUSTRALIA PTY LTD (ACN 000 565 739) and NELSON INDUSTRIES PTY LTD (ACN 007 317 339)

LEGRAND AUSTRALIA PTY LTD (ACN 000 565 739) and NELSON INDUSTRIES PTY LTD (ACN 007 317 339) v H.P.M. INDUSTRIES PTY LTD (ACN 000 102 661)

NSD 1083 of 2009

LINDGREN J
2 november 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1083 of 2009

IN THE MATTER OF LEGRAND AUSTRALIA PTY LTD (ACN 000 565 739) and

NELSON INDUSTRIES PTY LTD (ACN 007 317 339)

LEGRAND AUSTRALIA PTY LTD (ACN 000 565 739)
First Plaintiff

NELSON INDUSTRIES PTY LTD (ACN 007 317 339)
Second Plaintiff

H.P.M. INDUSTRIES PTY LTD (ACN 000 102 661)
Defendant

JUDGE:	LINDGREN J
DATE OF ORDER:	16 OCTOBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to sub-paragraph 411(4)(b) of the Corporations Act 2001 (Act), the schemes of arrangement between each plaintiff and its respective member, in the form set out in annexure ‘A’ to these orders (each a Scheme and together the Schemes), be approved.

2.Pursuant to sub-section 411(12) of the Act, each plaintiff be exempted from compliance with the requirements of sub-section 411(11) of the Act.

3.Pursuant to sub-section 413(1) of the Act (and using the definitions in the Schemes), as from the Effective Time, each of the following transactions will occur in the order set out below:

(a)first, all of the Assets of the first plaintiff, other than the Excluded LA Assets, will be transferred to and become Assets of the defendant, without the need for any further act or deed; and

(b)second, all of the Liabilities of the first plaintiff, other than the Excluded LA Liabilities, will be transferred to and become Liabilities of the defendant, without the need for any further act or deed.

4.Pursuant to sub-section 413(1) of the Act (and using the definitions in the Schemes), as from the Effective Time, each of the following transactions will occur in the order set out below:

(a)first, all of the Assets of the second plaintiff will be transferred to and become Assets of the defendant, without the need for any further act or deed;

(b)second, all of the Liabilities of the second plaintiff will be transferred to and become the Liabilities of the defendant, without the need for any further act or deed; and

(c)third, the second plaintiff will be deregistered by the Australian Securities and Investments Commission without winding up pursuant to sub-paragraph 413(1)(d) of the Act on and from 1 November 2009.

5.Pursuant to sub-paragraph 413(1)(c) of the Act, as from the Effective Time (as defined in the Schemes), any legal proceedings pending by or against either plaintiff will be deemed continued by or against (as the case may be) the defendant in respect of that plaintiff, without the need for any further act or deed, other than appropriate amendment of the record of the relevant court or tribunal.

6.Pursuant to sub-paragraph 413(1)(g) of the Act, upon the Schemes becoming Effective (as defined in the Schemes), each of the plaintiffs may disclose to the defendant all personal information held by each of them.

7.Pursuant to sub-paragraph 413(1)(g) of the Act, as from the Effective Time (as defined in the Schemes), the defendant may use, disclose and otherwise handle all information transferred and vested in it by each plaintiff provided always that the defendant shall receive the information upon the same terms as each plaintiff held the information and subject to the Liabilities of each plaintiff in respect of that information.

8.Pursuant to sub-paragraph 413(1)(g) of the Act, as from the Effective Time (as defined in the Schemes), the defendant or any director of the defendant from time to time may sign all documents and do all things required to be done by the second plaintiff to complete or perfect the transfer of the Assets and Liabilities of the second plaintiff provided for in these orders, whether by lodgement, registration, notification or otherwise. 

9.Liberty be reserved to any party to apply for any further orders as may be considered necessary or desirable under section 413 of the Act.

10.These orders be entered forthwith.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1083 of 2009

IN THE MATTER OF LEGRAND AUSTRALIA PTY LTD (ACN 000 565 739) and

NELSON INDUSTRIES PTY LTD (ACN 007 317 339)

LEGRAND AUSTRALIA PTY LTD (ACN 000 565 739)
First Plaintiff

NELSON INDUSTRIES PTY LTD (ACN 007 317 339)
Second Plaintiff

H.P.M. INDUSTRIES PTY LTD (ACN 000 102 661)
Defendant

JUDGE:	LINDGREN J
DATE:	2 november 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(second court hearing)

1. On 16 October 2009 I made the orders that appear at the front of these reasons for judgment.

2. On 2 October 2009 I had ordered that there be convened a meeting of Legrand France SA as the sole member of the first plaintiff (LA – henceforth I will use the abbreviations that I used in the earlier reasons for judgment) and a meeting of HPM as sole member of Nelson to consider, and if thought fit, agree to the LA Scheme and the Nelson Scheme): see: Legrand Australia Pty Ltd v H.P.M. Industries Pty Ltd; in the matter of Legrand Australia Pty Ltd [2009] FCA 1184.

3. The two Scheme Meetings were held on 7 October 2009 in accordance with the orders made at the first court hearing on 2 October 2009.

4. At the second court hearing there was evidence of the passing of resolutions agreeing to the respective Schemes.  Since the three parties are all, directly or indirectly, subsidiaries of Legrand France SA, as was predictable the resolutions were passed without dissent.

5. Prior to the holding of the meetings, there was a meeting of the sole unit holder of the NLUT, namely HPM, and the necessary resolution was passed that the NLUT be terminated (see [6] of my earlier reasons).

6. There was also evidence before the Court on the second court hearing that ASIC raised no objection to the Schemes.

7. I do not think it necessary to summarise all of the affidavit evidence that was before the Court on 16 October 2009.  I took into account all of that evidence in making the orders on 16 October 2009, both approving the Schemes and under s 413 of the Act.

8. It was for the earlier reasons and those set out above that I made the orders on 16 October 2009.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:
Dated:       2 November 2009

Counsel for the Plaintiffs:	Mr M B Oakes SC
Solicitor for the Plaintiffs:	Minter Ellison

Date of Hearing:	16 October 2009
Date of Judgment:	16 October 2009
Date of Publication of Reasons:	2 November 2009