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

[2013] FCA 1063

FEDERAL COURT OF AUSTRALIA

PrimeAg Australia Limited, in the matter of PrimeAg Australia Limited (No 2) [2013] FCA 1063

Citation:		PrimeAg Australia Limited, in the matter of PrimeAg Australia Limited (No 2) [2013] FCA 1063
Parties:		PRIMEAG AUSTRALIA LIMITED ACN 127 984 123
File number:		NSD 1741 of 2013
Judge:		FARRELL J
Date of judgment:		18 October 2013
Catchwords:		CORPORATIONS – scheme of arrangement – approval of scheme under ss 411(4)(b) and 411(6)
Legislation:		Corporations Act 2001 (Cth) 411, 411(4)(a)(ii), 411(4)(b), 411(6), 411(11), 411(12), 411(17)(b)
Cases cited:		PrimeAg Australia Limited, in the matter of PrimeAg Australia Limited [2013] FCA 1001
Date of hearing:	18 October 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Plaintiff:	Mr I Jackman SC
Solicitor for the Plaintiff:	Ashurst Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1741 of 2013

IN THE MATTER OF PRIMEAG AUSTRALIA LIMITED ACN 127 984 123

PRIMEAG AUSTRALIA LIMITED ACN 127 984 123 Plaintiff
JUDGE:	FARRELL J
DATE OF ORDER:	18 OCTOBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to section 411(4)(b) and section 411(6) of the Corporations Act 2001 (Cth) (the Act), the scheme of arrangement between the Plaintiff and the holders of ordinary shares in the Plaintiff (other than Australian Food & Fibre Limited ABN 88 077 983 370 and Dr David William Robinson) in the form contained in Attachment C of the Explanatory Memorandum, which is Exhibit 1 in this proceeding, be approved.

2.Pursuant to section 411(12) of the Act, the Plaintiff is exempted from compliance with section 411(11) of the Act.

3.These Orders be entered forthwith.  

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1741 of 2013

IN THE MATTER OF PRIMEAG AUSTRALIA LIMITED ACN 127 984 123

PRIMEAG AUSTRALIA LIMITED ACN 127 984 123 Plaintiff
JUDGE:	FARRELL J
DATE:	18 OCTOBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by the plaintiff, PrimeAg Australia Limited ACN 127 984 123 (PrimeAg) for the approval of the scheme of arrangement between PrimeAg and its shareholders (other than Australian Food & Fibre Limited and Dr David William Robinson) (Scheme Shareholders) under ss 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth) (Corporations Act). The plaintiff also seeks an order under s 411(12).

2. Terms used in these reasons bear the same meaning as in my reasons for making orders on 28 August 2013: see PrimeAg Australia Limited, in the matter of PrimeAg Australia Limited [2013] FCA 1001.

3. I will make the orders sought by the plaintiff.

4. My reasons for making the orders are generally as set out in the submissions of Mr Jackman SC dated 17 October 2013 and marked MFI 1.

5. In particular, I am satisfied that:

   ·The procedural requirements of s 411 have been satisfied.  I note the matters addressed at the first court hearing set out in my reasons for granting the orders on 28 August 2013 and in Mr Jackman’s written submissions for the first court hearing dated 27 August 2013.

   ·The statutory majority required by s 411(4)(a)(ii) has been achieved by a substantial margin and the turn out for the Scheme Meeting approached 70%.  I note the affidavits sworn on 17 October 2013 by Mr Roger Corbett AO, Chairman of the Scheme Meeting and Mr Mark McPhee, an executive of Link Market Services Limited.  Link was responsible for despatch of the Explanatory Memorandum and conducting the poll for the Scheme Meeting (and the Extraordinary General Meeting) held on 4 October 2013 in relation to these issues. Exhibit 6 is ASIC Form 530 relating to the despatch of the Explanatory Memorandum.

   ·I note the affidavit of Ms Megan Bruce of The Precinct Group Pty Limited affirmed on 17 October 2013 in relation to the production of the Explanatory Memorandum.  I note also the affidavit of Ms Sonia Tame, a partner at Ashurst Australia sworn 18 October 2013 attesting to the fact that no notice of intention of any person to appear at the second court hearing has been received.

   ·The conditions precedent to the Scheme (other than the Court approval to the Scheme and lodgement of orders with ASIC) have been satisfied or waived.  This is based on the certificates from PrimeAg and AFF which are Exhibits 4 and 5. 

   ·ASIC has issued a “no objection” letter in relation to the Scheme under s 411(17)(b), and it is Exhibit 3 in these proceedings.

   ·No fact or circumstance has been drawn to my attention which would indicate that Court approval to the Scheme should be denied.

6. I note in relation to the conditions that at the EGM the Emerald Transaction, the Emerald Distribution and the Final Distribution were all approved by substantial majorities.  I note also the affidavit of Mr William Koeck, a partner at Ashurst Australia, sworn on 18 October 2013 which attests that PrimeAg and AFF have executed a Deed Poll in favour of PrimeAg shareholders in relation to the distribution of the Final Distribution and the Emerald Distribution.  PrimeAg also made an announcement to the ASX on 6 September 2013 in relation to the Final Distribution indicating that it would be in the range of 13-15 cents per PrimeAg Share, which is within or above the range set out in the Explanatory Memorandum.  Mr Keock’s affidavit also attests to the advertising of the second court hearing as ordered on 28 August and to the registration of the Explanatory Memorandum with ASIC.

7. 
   Accordingly, I make the orders sought by the plaintiff approving the Scheme.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:
Dated:       18 October 2013