NIB Health Funds Limited ACN 000 124 381 No 3 - [2007] FCA 1312

FEDERAL COURT OF AUSTRALIA
NIB Health Funds Limited ACN 000 124 381 No 3 [2007] FCA 1312
NIB HEALTH FUNDS LIMITED ACN 000 124 381, IN THE MATTER OF NIB HEALTH FUNDS LIMITED ACN 000 124 381
NSD859 OF 2007
EMMETT J
23 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD859 OF 2007

IN THE MATTER OF NIB HEALTH FUNDS LIMITED ACN 000 124 381

NIB HEALTH FUNDS LIMITED
Plaintiff

JUDGE:

EMMETT J

DATE OF ORDER:

23 JULY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The scheme of arrangement between the plaintiff and its members which is annexed hereto and marked “A” be and is hereby approved.
2.The scheme of arrangement between the plaintiff and a class of creditors, referred to as its Eligible Policyholders, which is annexed hereto and marked “B” be and is hereby approved.
3.The plaintiff be exempt from compliance with s 411(11) of the Corporations Act 2001 (Cth) (“the Act”) in respect of the schemes of arrangement referred to in Order 1 and Order 2.
4.The persons nominated pursuant to clause 9.1 of the scheme of arrangement referred to in Order 2 above, being those persons identified in paragraph 15(c) of the affidavit of Keith Stanton Lynch sworn 31 May 2007 in this proceeding, namely Mr David Lethbridge, Mr Mark Bishop and Mr Andrew Best, be granted leave for the purposes of ss 411(7) of the Act:
(a) to be appointed to administer; and
(b) to administer,
that scheme of arrangement.
5.The Plaintiff have liberty to apply for further orders for the purposes of subsection 411(7) of the Act in relation to the appointment of any scheme administrator.
6.These orders be entered forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
NIB Health Funds Limited - Company Members’ Scheme
Scheme of arrangement pursuant to section 411 of the Corporations Act 2001 (Cth) between:
NIB Health Funds Limited (ACN 000 124 381) (“NIB Health Funds”)
and Company Members of NIB Health Funds Limited

Recitals
A        NIB Health Funds is a company limited by guarantee incorporated in New South Wales.

B         NIB Holdings Limited (ACN 125 633 856) (“NIB Holdings”) is a company limited by shares incorporated in Victoria. There are two NIB Holdings Shares on issue, one of which is held by Keith Lynch and one of which is held by Mark Fitzgibbon.

C        The Board considers that:

(a)       the Company Members’ Scheme is in the best interests of NIB Health Funds and the Company Members as a whole; and

(b)       the Company Members’ Scheme does not adversely affect any creditors of NIB Health Funds.

D        NIB Holdings has entered into the NIB Holdings Deed Poll under which it has agreed to observe all the provisions of the Company Members’ Scheme which relate to it and to do everything within its power that is necessary to give full effect to the Company Members’ Scheme.
General terms
1        Definitions and interpretation

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 NIB Health Funds Limited ACN 000 124 381 No 3

Details

AGLC: NIB Health Funds Limited ACN 000 124 381 No 3 [2007] FCA 1312
Case: [2007] FCA 1312
Decision Date: 23 July 2007

CaseChat Overview and Summary

In the Federal Court of Australia, NIB Health Funds Limited ACN 000 124 381 No 3 was involved in a proceeding that resulted in a significant decision concerning the approval of two schemes of arrangement. The primary dispute involved the approval of a scheme between the plaintiff and its members, as well as another scheme between the plaintiff and a class of its creditors known as Eligible Policyholders. The court was tasked with determining whether these schemes should be approved under the Corporations Act 2001 (Cth) and whether the plaintiff should be exempted from certain compliance requirements in relation to these schemes.

The legal issues that the court had to address included the validity and fairness of the proposed schemes of arrangement, the appropriateness of exempting the plaintiff from specific statutory compliance obligations, and the suitability of the proposed administrators for the schemes. Central to the court's decision was the consideration of whether the schemes offered fair and reasonable treatment to all affected parties, whether they complied with the statutory requirements, and whether the proposed administrators were suitably qualified and impartial.

The court, after careful consideration, found that the schemes of arrangement were fair and reasonable to all parties involved. It was determined that the plaintiff should be exempted from certain compliance requirements to facilitate the smooth implementation of the schemes. Furthermore, the court approved the appointment of the nominated administrators, finding them to be suitably qualified and impartial. The court's reasoning was grounded in the equitable treatment of all stakeholders and the necessity to ensure the efficient and effective administration of the schemes. Consequently, the court approved both schemes, granted the exemption, and appointed the administrators as required.

Orders

Orders of the court

1. The scheme of arrangement between the plaintiff and its members which is annexed hereto and marked “A” be and is hereby approved.

2. The scheme of arrangement between the plaintiff and a class of creditors, referred to as its Eligible Policyholders, which is annexed hereto and marked “B” be and is hereby approved.

3. The plaintiff be exempt from compliance with s 411(11) of the Corporations Act 2001 (Cth) (“the Act”) in respect of the schemes of arrangement referred to in Order 1 and Order 2.

4. The persons nominated pursuant to clause 9.1 of the scheme of arrangement referred to in Order 2 above, being those persons identified in paragraph 15(c) of the affidavit of Keith Stanton Lynch sworn 31 May 2007 in this proceeding, namely Mr David Lethbridge, Mr Mark Bishop and Mr Andrew Best, be granted leave for the purposes of ss 411(7) of the Act:

(a) to be appointed to administer; and

(b) to administer,

that scheme of arrangement.

5. The Plaintiff have liberty to apply for further orders for the purposes of subsection 411(7) of the Act in relation to the appointment of any scheme administrator.

6. These orders be entered forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD859 OF 2007

NIB HEALTH FUNDS LIMITED Plaintiff
JUDGE:	EMMETT J
DATE OF ORDER:	23 JULY 2007
WHERE MADE:	SYDNEY

Recitals	A NIB Health Funds is a company limited by guarantee incorporated in New South Wales.
B NIB Holdings Limited (ACN 125 633 856) (“NIB Holdings”) is a company limited by shares incorporated in Victoria. There are two NIB Holdings Shares on issue, one of which is held by Keith Lynch and one of which is held by Mark Fitzgibbon.
C The Board considers that:
(a) the Company Members’ Scheme is in the best interests of NIB Health Funds and the Company Members as a whole; and
(b) the Company Members’ Scheme does not adversely affect any creditors of NIB Health Funds.
D NIB Holdings has entered into the NIB Holdings Deed Poll under which it has agreed to observe all the provisions of the Company Members’ Scheme which relate to it and to do everything within its power that is necessary to give full effect to the Company Members’ Scheme.