Peplin Limited - [2007] FCA 1387

FEDERAL COURT OF AUSTRALIA
Peplin Limited [2007] FCA 1387
CORPORATIONS – application by a company to convene meetings of shareholders and optionholders to consider schemes of arrangement effecting change of location of the business to United States
Corporations Act 2001 (Cth) s 411(1)
Corporations Regulations, reg 5.6.12, 5.6.14 to 5.6.36A
Federal Court (Corporations) Rules 2000 (Cth), r 3.4(3)(b)
Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 cited
IN THE MATTER OF PEPLIN LIMITED ABN 55 090 819 275
NSD 1653 OF 2007
GYLES J
23 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1653 OF 2007

IN THE MATTER OF PEPLIN LIMITED ABN 090 819 275
Plaintiff

JUDGE:

GYLES J

DATE OF ORDER:

23 AUGUST 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Corporations Act):
(a)     Peplin Limited ABN 55 090 819 275 (Company) convene a meeting (Share Scheme Meeting) of the holders of ordinary shares in the Company (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 the Company and Shareholders (Share Scheme), being the scheme substantially in the form of the draft contained in Appendix C of the information memorandum containing the explanatory statement in relation to the Share Scheme, being Exhibit “A” (Information Memorandum).
(b)     The Company convene a meeting (Option Scheme Meeting) of the holders of options quoted on ASX Limited (Optionholders) to subscribe for shares in the Company (Company Options) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between the Company and Optionholders (Option Scheme), being the scheme substantially in the form of the draft contained in Appendix D of the Information Memorandum.
(c)     The Share Scheme Meeting be held at 10.30 am (Australian Eastern Standard Time) on Monday, 1 October 2007 at the Hilton International Hotel, 190 Elizabeth St, Brisbane, Queensland.
(d)     The Option Scheme Meeting be held at 11.00 am (Australian Eastern Standard Time) (or as soon after that time as the Share Scheme Meeting concludes or is adjourned) on Monday, 1 October 2007 at the Hilton International Hotel, 190 Elizabeth St, Brisbane, Queensland.
(e)     The Chairperson of each of the Share Scheme Meeting and the Option Scheme Meeting be Cherrell Hirst and in her absence Michael Spooner.
(f)     The Chairperson appointed to each of the Share Scheme Meeting and the Option Scheme Meeting has the power to adjourn either or both of those meetings in her or his absolute discretion.
(g)     All voting at the Share Scheme Meeting and the Option Scheme Meeting be by poll as declared by the Chairperson.
(h)     The explanatory statement in the Information Memorandum for the Share Scheme and the Option Scheme be approved…

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 Peplin Limited

Details

AGLC: Peplin Limited [2007] FCA 1387
Case: [2007] FCA 1387
Decision Date: 23 August 2007

CaseChat Overview and Summary

Peplin Limited, a company registered in Australia, was the subject of a legal case where the primary dispute involved the convening of two meetings to consider a proposed scheme of arrangement. The case was heard in the Federal Court of Australia. The dispute centered around the necessity for the company to convene two separate meetings for the holders of ordinary shares and option holders to approve a scheme of arrangement. The legal issues that the court had to address included whether the company was legally required to convene these meetings, the proper procedures for convening and conducting these meetings, and the conditions under which these meetings should take place.

The court examined the relevant sections of the Corporations Act 2001 and found that the company was indeed required to convene the meetings in question. It was determined that the scheme of arrangement proposed needed the approval of both ordinary shareholders and option holders. The court considered the procedural requirements for these meetings, including the timing, location, and manner of voting. The court also addressed the need for the explanatory statement to be approved and distributed to the relevant parties. Additionally, the court considered the applicability of certain regulations to these scheme meetings and decided that certain provisions of the Corporations Regulations should not apply.

The court ruled that the company must convene the meetings as specified in the orders, with detailed instructions on the timing, location, and procedural aspects of the meetings. The explanatory statement was approved for distribution. The court also exempted the company from certain notice requirements regarding the hearing of applications to approve the schemes. The proceedings were stood over for a later date to allow for any necessary applications to approve the schemes. The orders were to be entered forthwith, ensuring that the company complied with the court's directives in a timely manner.

Orders

Orders of the court

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

(a) Peplin Limited ABN 55 090 819 275 (Company) convene a meeting (Share Scheme Meeting) of the holders of ordinary shares in the Company (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 the Company and Shareholders (Share Scheme), being the scheme substantially in the form of the draft contained in Appendix C of the information memorandum containing the explanatory statement in relation to the Share Scheme, being Exhibit “A” (Information Memorandum).

(b) The Company convene a meeting (Option Scheme Meeting) of the holders of options quoted on ASX Limited (Optionholders) to subscribe for shares in the Company (Company Options) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between the Company and Optionholders (Option Scheme), being the scheme substantially in the form of the draft contained in Appendix D of the Information Memorandum.

(c) The Share Scheme Meeting be held at 10.30 am (Australian Eastern Standard Time) on Monday, 1 October 2007 at the Hilton International Hotel, 190 Elizabeth St, Brisbane, Queensland.

(d) The Option Scheme Meeting be held at 11.00 am (Australian Eastern Standard Time) (or as soon after that time as the Share Scheme Meeting concludes or is adjourned) on Monday, 1 October 2007 at the Hilton International Hotel, 190 Elizabeth St, Brisbane, Queensland.

(e) The Chairperson of each of the Share Scheme Meeting and the Option Scheme Meeting be Cherrell Hirst and in her absence Michael Spooner.

(f) The Chairperson appointed to each of the Share Scheme Meeting and the Option Scheme Meeting has the power to adjourn either or both of those meetings in her or his absolute discretion.

(g) All voting at the Share Scheme Meeting and the Option Scheme Meeting be by poll as declared by the Chairperson.

(h) The explanatory statement in the Information Memorandum for the Share Scheme and the Option Scheme be approved for distribution to Shareholders and Optionholders.

(i) The Company publish a notice of hearing of any application to approve the Share Scheme and the Option Scheme no later than Wednesday 3 October 2007 and the Company shall otherwise be exempted from compliance with the requirement to publish such notices at least five days before the date fixed for hearing of the application pursuant to Rule 3.4(3)(b) of the Federal Court (Corporations) Rules 2000 (Cth).

2. Regulations 5.6.12 and 5.6.14 to 5.6.36A of the Corporations Regulations shall not apply to the Scheme Meetings.

3. The proceedings be stood over to Monday, 8 October 2007 at 10.15 am before Gyles J for the hearing of any application to approve the Schemes.

4. Liberty to restore on two days’ notice.

5. These Orders to 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

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1653 OF 2007

JUDGE:	GYLES J
DATE OF ORDER:	23 AUGUST 2007
WHERE MADE:	SYDNEY