Re Allied Gold Limited - [2011] QSC 108

SUPREME COURT OF QUEENSLAND

CITATION:

In the matter of Allied Gold Limited [2011] QSC 108

PARTIES:

IN THE MATTER OF ALLIED GOLD LIMITED
ACN 104 855 067
(Applicant)

FILE NO/S:

BS 3415 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

Orders delivered ex tempore on 4 May 2011

Reasons delivered 11 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2011

JUDGE:

McMurdo J

ORDER:

Delivered ex tempore on 4 May 2011:

Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (the Act), the Applicant shall summon and convene a meeting (the share scheme meeting) of its shareholders (the shareholders) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the Applicant substantially in the form set out in the share scheme booklet (the share scheme booklet) included at tab 6 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 with the amendments identified in the affidavit of Andrew Rankin filed 4 May 2011.1.

Pursuant to section 411(1) of the Act, the Applicant shall summon and convene a meeting (the option scheme meeting) of holders of options to acquire shares of the Applicant (the optionholders) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the Applicant substantially in the form set out in the option scheme booklet (the option scheme booklet) included at tab 7 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 2011 with the amendments identified in the affidavit of Andrew Rankin sworn 4 May 2011.2.

Upon the articles of association of Allied Gold Mining Plc being changed in accordance with the proposal contained in section 13.7 of the share scheme booklet, the share scheme meeting shall be held on 6 June 2011 at the Hilton Brisbane Hotel, 190 Elizabeth Street, Brisbane in the State of Queensland, at 10.30am (Brisbane Time) or as soon thereafter as is convenient.3.

The option scheme meeting shall be held on 6 June 2011 at the Hilton Brisbane Hotel, 190 Elizabeth Street, Brisbane in the State of Queensland, at 10.00am (Brisbane Time) or as soon thereafter as is convenient.4.

The share scheme meeting shall be convened by sending to the shareholders by ordinary pre-paid post on or before 6 May 2011:5.

the share scheme booklet;i.

the notice of share scheme meeting;ii.

a proxy form;iii.

substantially in the form contained at tab 6 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011.

The option scheme meeting shall be convened by sending to the optionholders by ordinary pre-paid post on or before 6 May 2011:6.

the option scheme booklet;i.

the notice of option scheme meeting;ii.

a proxy form;iii.

substantially in the form contained at tab 7 of exhibit FT1 of the affidavit of Frank Terranova sworn…

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 Re Allied Gold Limited

Details

AGLC: Re Allied Gold Limited [2011] QSC 108
Case: [2011] QSC 108
Decision Date: 4 May 2011

CaseChat Overview and Summary

In the matter of Allied Gold Limited, the Court was asked to order the convening of meetings for the shareholders and option holders of the company to consider proposed schemes of arrangement. These schemes involved the 'top hatting' of the company by a UK entity. The legal issues the Court had to address were whether it should order the meetings and approve the explanatory statements, and whether separate meetings should be convened for different classes of shareholders and option holders. The Court's reasoning was based on the Corporations Act 2001 and the need for proper notice and consideration of the schemes by the relevant stakeholders. The Court decided to approve the explanatory statements and order the convening of separate meetings for the shareholders and option holders to ensure that all affected parties could properly consider and vote on the proposed arrangements. The final orders included directions for the timing, location, and procedural aspects of the meetings, as well as the approval of the explanatory statements in the specified forms.

Orders

Orders of the court

Delivered ex tempore on 4 May 2011:

Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (the Act), the Applicant shall summon and convene a meeting (the share scheme meeting) of its shareholders (the shareholders) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the Applicant substantially in the form set out in the share scheme booklet (the share scheme booklet) included at tab 6 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 with the amendments identified in the affidavit of Andrew Rankin filed 4 May 2011.1.

Pursuant to section 411(1) of the Act, the Applicant shall summon and convene a meeting (the option scheme meeting) of holders of options to acquire shares of the Applicant (the optionholders) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the Applicant substantially in the form set out in the option scheme booklet (the option scheme booklet) included at tab 7 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 2011 with the amendments identified in the affidavit of Andrew Rankin sworn 4 May 2011.2.

Upon the articles of association of Allied Gold Mining Plc being changed in accordance with the proposal contained in section 13.7 of the share scheme booklet, the share scheme meeting shall be held on 6 June 2011 at the Hilton Brisbane Hotel, 190 Elizabeth Street, Brisbane in the State of Queensland, at 10.30am (Brisbane Time) or as soon thereafter as is convenient.3.

The option scheme meeting shall be held on 6 June 2011 at the Hilton Brisbane Hotel, 190 Elizabeth Street, Brisbane in the State of Queensland, at 10.00am (Brisbane Time) or as soon thereafter as is convenient.4.

The share scheme meeting shall be convened by sending to the shareholders by ordinary pre-paid post on or before 6 May 2011:5.

the share scheme booklet;i.

the notice of share scheme meeting;ii.

a proxy form;iii.

substantially in the form contained at tab 6 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011.

The option scheme meeting shall be convened by sending to the optionholders by ordinary pre-paid post on or before 6 May 2011:6.

the option scheme booklet;i.

the notice of option scheme meeting;ii.

a proxy form;iii.

substantially in the form contained at tab 7 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011.

The documents identified in paragraph 5:7.

shall be sent to those shareholders who are recorded in the Applicant’s register of shareholders, and to each shareholder at the address recorded in respect of that shareholder in the register of shareholders, as at 10.30am on 4 May 2011;i.

shall be deemed to be received in accordance with clauses 26.2 and 26.3 of the constitution of the Applicant as if the documents were notices of a general meeting.ii.

The documents identified in paragraph 6:8.

shall be sent to those optionholders who are recorded in the Applicant’s register of optionholders, and to each optionholder at the address recorded in respect of that optionholder in the register of optionholders, as at 10.30am on 4 May 2011;i.

shall be deemed to be received in accordance with clauses 26.2 and 26.3 of the constitution of the Applicant as if the documents were notices of a general meeting.ii.

All voting at the share scheme meeting and the option scheme meeting (other than voting on any procedural motion) shall be conducted by poll.9.

A proxy may not vote at the share scheme meeting or the option scheme meeting unless the instrument appointing the proxy is received by 10.30am (Brisbane time) on 4 June 2011 sent to the Applicant at an address nominated by it in the share scheme booklet or the option scheme booklet.10.

Except as otherwise provided for in this order, the constitution of the Applicant shall govern the convening and proceedings of the share scheme meeting and the option scheme meeting as if it was a general meeting of the Applicant, except that:11.

paragraphs 11.3, 12.3, 12.8, 12.9 and 12.10 of the constitution of the Applicant shall not apply;i.

the poll (referred to in paragraph ii. 9 above) shall be taken irrespective of whether a majority demands it; and

a person’s entitlement to vote at the meeting will be the entitlement of that person as recorded in the Applicant’s register of shareholders or the register of optionholders at 10.30am on 4 June 2011.iii.

With the exception of regulation 5.6.13, regulations 5.6.12 to 5.6.36A of the Corporations Regulations 2001 shall not apply to the share scheme meeting and to the option scheme meeting.12.

Frank Terranova, or in his absence, Peter Torre shall act as chairman of each of the share scheme meeting and the option scheme meeting and, in the absence of either, the share scheme meeting and the option scheme meeting shall elect some other person as chairman.13.

The explanatory statements contained in the share scheme booklet and the option scheme booklet, in substantially the form contained in tabs 6 and 7 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 with the amendments identified in the affidavit of Andrew Rankin filed 4 May 2011, are approved.14.

The Applicant has liberty to apply.15.

The balance of the Application filed 20 April 2011 is adjourned to 20 June 2011.16.

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.

CITATION:	In the matter of Allied Gold Limited [2011] QSC 108
PARTIES:	IN THE MATTER OF ALLIED GOLD LIMITED ACN 104 855 067 (Applicant)
FILE NO/S:	BS 3415 of 2011
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	Orders delivered ex tempore on 4 May 2011 Reasons delivered 11 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2011
JUDGE:	McMurdo J
ORDER:	Delivered ex tempore on 4 May 2011: Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (the Act), the Applicant shall summon and convene a meeting (the share scheme meeting) of its shareholders (the shareholders) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the Applicant substantially in the form set out in the share scheme booklet (the share scheme booklet) included at tab 6 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 with the amendments identified in the affidavit of Andrew Rankin filed 4 May 2011.1. Pursuant to section 411(1) of the Act, the Applicant shall summon and convene a meeting (the option scheme meeting) of holders of options to acquire shares of the Applicant (the optionholders) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the Applicant substantially in the form set out in the option scheme booklet (the option scheme booklet) included at tab 7 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011 2011 with the amendments identified in the affidavit of Andrew Rankin sworn 4 May 2011.2. Upon the articles of association of Allied Gold Mining Plc being changed in accordance with the proposal contained in section 13.7 of the share scheme booklet, the share scheme meeting shall be held on 6 June 2011 at the Hilton Brisbane Hotel, 190 Elizabeth Street, Brisbane in the State of Queensland, at 10.30am (Brisbane Time) or as soon thereafter as is convenient.3. The option scheme meeting shall be held on 6 June 2011 at the Hilton Brisbane Hotel, 190 Elizabeth Street, Brisbane in the State of Queensland, at 10.00am (Brisbane Time) or as soon thereafter as is convenient.4. The share scheme meeting shall be convened by sending to the shareholders by ordinary pre-paid post on or before 6 May 2011:5. the share scheme booklet;i. the notice of share scheme meeting;ii. a proxy form;iii. substantially in the form contained at tab 6 of exhibit FT1 of the affidavit of Frank Terranova sworn 29 April 2011. The option scheme meeting shall be convened by sending to the optionholders by ordinary pre-paid post on or before 6 May 2011:6. the option scheme booklet;i. the notice of option scheme meeting;ii. a proxy form;iii. substantially in the form contained at tab 7 of exhibit FT1 of the affidavit of Frank Terranova sworn…