Platinum Australia Limited, in the matter of Platinum Australia Limited (No 2)

[2013] FCA 776

FEDERAL COURT OF AUSTRALIA

Platinum Australia Limited, in the matter of Platinum Australia Limited (No 2) [2013] FCA 776

Citation:		Platinum Australia Limited, in the matter of Platinum Australia Limited (No 2) [2013] FCA 776
Parties:		PLATINUM AUSTRALIA LIMITED (ACN 093 417 942)
File number(s):		WAD 138 of 2013
Judge(s):		SIOPIS J
Date of judgment:		31 July 2013
Catchwords:		CORPORATIONS – scheme of arrangement – condition precedent to the scheme of arrangement unable to be satisfied – second court hearing adjourned.
Cases cited:		Re Excel Coal Ltd (2006) 60 ACSR 184
Date of hearing:	31 July 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Plaintiff:	Mr SK Dharmananda SC
Solicitor for the Plaintiff:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 138 of 2013

IN THE MATTER OF PLATINUM AUSTRALIA LIMITED (ACN 093 417 942)

PLATINUM AUSTRALIA LIMITED (ACN 093 417 942)
Plaintiff

JUDGE:	SIOPIS J
DATE OF ORDER:	31 JULY 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The hearing is adjourned until a time and date to be fixed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 138 of 2013

IN THE MATTER OF PLATINUM AUSTRALIA LIMITED (ACN 093 417 942)

PLATINUM AUSTRALIA LIMITED (ACN 093 417 942)
Plaintiff

JUDGE:	SIOPIS J
DATE:	31 JULY 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This hearing was listed as the second court hearing in relation to the approval of a scheme of arrangement between Platinum Australia Limited and its members.

2. On 21 June 2013, I made orders for the convening of a meeting of the members of Platinum Australia Limited (PLA) to consider and, if thought fit, pass a scheme of arrangement which would have the effect of the bidder company, Jubilee Platinum plc (Jubilee), acquiring all the shares from the shareholders of PLA, and PLA becoming a subsidiary of Jubilee.

3. One of the conditions precedent to the scheme of arrangement was the fulfilment of a financing condition precedent by the date of the second court hearing.  Pursuant to the orders of 21 June 2013, the meeting of shareholders was to take place on 30 July 2013.  I have the evidence of Mr Bryan Hughes, the deed administrator of PLA, that the meeting was convened, but was adjourned by the chairperson by reason of a development which had occurred.  That development was that Jubilee was not in a position to satisfy the financing condition precedent.

4. The evidence of Mr Hughes is that a memorandum of understanding has been signed between Jubilee and the potential financier, Macquarie Bank Limited, and that an amendment has been made to the scheme documentation so that the “end date” of the scheme implementation deed will now be 30 September 2013, and the time for the fulfilment of the financing condition precedent will be the second court hearing in relation to the proposed amended scheme of arrangement.  Accordingly, there will be an extension of time for the satisfaction of the financing condition precedent on the basis that this court hearing is adjourned to a later date.

5. The evidence from Mr Hughes is that the nature of the financing which is proposed by the parties to the memorandum of understanding will fall outside the ambit of the current scheme of arrangement.  Therefore, it will be necessary to make amendments to the proposed scheme, and also to obtain the approval of the members to the proposed amendment to the scheme.  It will, therefore, be necessary for PLA to inform its members of the amendments to the scheme and then to hold a meeting at which the proposed amendments and the amended scheme of arrangement are considered by the members.

6. Mr Dharmananda, senior counsel for PLA, has drawn my attention to the case of Re Excel Coal Ltd (2006) 60 ACSR 184. In that case, Lindgren J approved the procedure which Mr Dharmananda has foreshadowed in relation to the approval of the proposed amended scheme of arrangement. Mr Dharmananda has also informed me that his instructing solicitors have been in communication with the Australian Securities and Investments Commission (ASIC) and that ASIC will need to be involved in the proposed further documentation.

7. I understand that PLA, at this time, intends on the adjourned hearing, to seek the approval of the Court for the forwarding of a revised scheme booklet and revised scheme of arrangement to its members, and to seek orders for the reconvening of the meeting which is currently adjourned.

8. In light of the developments which have occurred, I am prepared to make the orders which are sought by PLA today and to adjourn this hearing to a date to be fixed.

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

Associate:
Dated:        6 August 2013