FEDERAL COURT OF AUSTRALIA
Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited [2015] FCA 341
Citation: Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited [2015] FCA 341 Parties: AMCOM TELECOMMUNICATIONS LIMITED ACN 062 046 217 File number: WAD 54 of 2015 Judge: MCKERRACHER J Date of judgment: 13 April 2015 Catchwords: CORPORATIONS – scheme of arrangement – application pursuant to s 411(1) that a company convene a meeting of its members Legislation: Corporations Act 2001 (Cth) ss 411, 412, 1319 Cases cited: Re ABB Grain Ltd [2010] FCA 1309
Re ACM Gold Ltd; Re Mt Leyshon Gold Mines Ltd (1992) 34 FCR 530
Re Alinta Limited (No 2) [2007] FCA 1378
Re APN News & Media Ltd (2007) 62 ACSR 400
Re Arthur Yates & Co Ltd (2001) 36 ACSR 758
Re CSR Ltd (2010) 183 FCR 358
Re Foundation Healthcare Ltd (2002) 42 ACSR 252
Re Integra Mining Limited [2012] FCA 1414
Re Investa Properties Limited [2007] FCA 1104
MDA National Ltd v Medical Defence Australia Ltd [2014] FCA 954
Re NRMA Ltd (No 1) (2000) 156 FLR 349
Re oOh!Media Group Ltd [2012] FCA 26
Re Permanent Trustee Co Ltd (2002) 43 ACSR 601
Re Rusina Mining NL [2010] FCA 517
Re Sonodyne International Ltd (1994) 15 ACSR 494
Sovereign Life Assurance Co v Dodd [1892] QB 573Date of hearing: 30 March 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 58 Counsel for the Plaintiff: Mr S K Dharmananda SC Solicitor for the Plaintiff: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 54 of 2015
IN THE MATTER OF AMCOM TELECOMMUNICATIONS LIMITED
ACN 062 046 217
BETWEEN: AMCOM TELECOMMUNICATIONS LIMITED
ACN 062 046 217
Plaintiff
JUDGE:
MCKERRACHER J
DATE OF ORDER:
30 MARCH 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act):
a.the plaintiff convene a meeting of the holders of its ordinary shares (Shareholders) (Scheme Meeting) for the purpose of considering, and if thought fit, approving a scheme of arrangement (with or without modification) proposed to be made between the plaintiff and the Shareholders (Scheme), being the scheme substantially in the form set out in Annexure D of the scheme booklet, containing the explanatory statement, in relation to the Scheme which is annexure MAP6 of the affidavit of Mark Anthony Paganin sworn 27 March 2015 in the proceeding (Scheme Booklet);
b.the Scheme Meeting be held at 11:00am (AWST) on 6 May 2015 at The Duxton Hotel, 1 St Georges Terrace, Perth, Western Australia 6000;
c.Anthony James Grist, or failing him, Clive Ralph Stein, be the chairperson of the Scheme Meeting and report the result of the Scheme Meeting to this Court; and
d.the chairperson appointed to the Scheme Meeting have the power to adjourn the Scheme Meeting in their absolute discretion for such time that the chairperson considers appropriate.
2.Pursuant to section…
Continue reading Re Amcom Telecommunications Ltd
Sign in free to access the full text
- AGLC
- Re Amcom Telecommunications Ltd [2015] FCA 341
- Case
- [2015] FCA 341
- Decision Date
CaseChat Overview and Summary
The Court found that the application was well-supported and that the Scheme Booklet, which contained the explanatory statement, was accurate. Vocus had verified the accuracy of the statements in the Scheme Booklet. The Court held that the application satisfied the prerequisites for making an order under section 411 of the Act. The Court also considered that the meeting should be conducted in accordance with the relevant provisions of the Corporations Act and the company's constitution.
The Court granted the application and ordered the convening of a meeting of Amcom's shareholders to consider the proposed scheme of arrangement. The meeting was to be held at a specified time and place, with specific individuals appointed as the chairperson. The Court also directed the distribution of the Scheme Booklet to the shareholders, with a deadline for the return of proxy forms. The Court further directed that the explanatory statement in the Scheme Booklet be approved for distribution to the shareholders. Lastly, the Court adjourned the proceeding to allow for a later hearing to approve the scheme.
Orders
Orders of the court
1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act):
a. the plaintiff convene a meeting of the holders of its ordinary shares (Shareholders) (Scheme Meeting) for the purpose of considering, and if thought fit, approving a scheme of arrangement (with or without modification) proposed to be made between the plaintiff and the Shareholders (Scheme), being the scheme substantially in the form set out in Annexure D of the scheme booklet, containing the explanatory statement, in relation to the Scheme which is annexure MAP6 of the affidavit of Mark Anthony Paganin sworn 27 March 2015 in the proceeding (Scheme Booklet);
b. the Scheme Meeting be held at 11:00am (AWST) on 6 May 2015 at The Duxton Hotel, 1 St Georges Terrace, Perth, Western Australia 6000;
c. Anthony James Grist, or failing him, Clive Ralph Stein, be the chairperson of the Scheme Meeting and report the result of the Scheme Meeting to this Court; and
d. the chairperson appointed to the Scheme Meeting have the power to adjourn the Scheme Meeting in their absolute discretion for such time that the chairperson considers appropriate.
2. Pursuant to section 1319 of the Act, Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) shall not apply to the Scheme Meeting, except in so far as that rule applies regulation 5.6.13 (without the form 530 stipulated therein) of the Corporations Regulations 2001 (Cth) to the Scheme Meeting. Subject to these Orders and pursuant to section 1319 of the Act, the Scheme Meeting is to be:
a. convened, held and conducted in accordance with the provisions of Part 2G.2 of the Act that apply to members of a company and the provisions of the plaintiff's constitution that are not inconsistent therewith and that apply to meetings of members; and
b. convened using the notice of meeting in the form or to the effect of the notice contained in Annexure F of the Scheme Booklet.
3. Pursuant to section 411(1) of the Act, the explanatory statement contained in the Scheme Booklet is approved for distribution to the Shareholders.
4. Subject to registration of the Scheme Booklet with the Australian Securities & Investments Commission (ASIC) pursuant to section 412(6) of the Act, the plaintiff is to dispatch, on or before 2 April 2015, a document substantially in the form of the Scheme Booklet, a proxy form, and a reply-paid envelope addressed to Computershare Investor Services Pty Limited to each Shareholder on the plaintiff's register of members (Register) to the relevant address set out in the Register by:
a. in the case of each Shareholder who has a registered address in Australia, prepaid post;
b. in the case of each Shareholder who has a registered address outside Australia, prepaid airmail or air courier; and
c. in the case of each Shareholder who has nominated an electronic address for the purposes of receiving notifications of notices of any meeting from Computershare Investor Services Pty Ltd, by email to the email address nominated by that Shareholder.
5. Dispatch of the documents referred to in paragraph 4 of these Orders in accordance with its terms is to be taken to be sufficient notice of the Scheme Meeting.
6. The time by which the Shareholders must return their proxy forms for the Scheme Meeting is 11:00am (AWST) on 4 May 2015.
7. All voting at the Scheme Meeting be by poll declared by the chairperson.
8. All votes cast by holders of performance rights in Amcom be identified by affidavit evidence filed by the s 411(6) hearing .
9. If the matter is relisted, the plaintiff is to give notice of the hearing of the application pursuant to section 411(4) of the Act and that notice of the hearing of an application pursuant to subsection 411(4)(b) of the Act for orders approving the Scheme be published once in "The Australian" newspaper by an advertisement substantially in the form of Annexure A to these Orders, such advertisement to be published on or before 7 May 2015 and the plaintiff be otherwise exempted from compliance with Rule 3.4 of the Corporations Rules.
10. The proceeding be adjourned to 13 May 2015 at 10:15am before Justice McKerracher for the hearing of an application to approve the Scheme.
11. These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
Section 411 and s 1319 CA relevantly and respectively provide:411 Administration of compromises etc.(1)Where a compromise or arrangement is proposed between a Part 5.1 body and its creditors or any class of them or between a Part 5.1 body and its members or any class of them, the Court may, on the application in a summary way of the body or of any creditor or member of the body, or, in the case of a body being wound up, of the liquidator, order a meeting or meetings of the creditors or class of creditors or of the members of the body or class of members to be convened in such manner, and to be held in such place or places (in this jurisdiction or elsewhere), as the Court directs and, where the Court makes such an order, the Court may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting or meetings.…(2)The Court must not make an order pursuant to an application under subsection (1) or (1A) unless:(a)14 days notice of the hearing of the application, or such lesser period of notice as the Court or ASIC permits, has been given to ASIC; and(b)the Court is satisfied that ASIC has had a reasonable opportunity:(i)to examine the terms of the proposed compromise or arrangement to which the application relates and a draft explanatory statement relating to the proposed compromise or arrangement; and(ii)to make submissions to the Court in relation to the proposed compromise or arrangement and the draft explanatory statement.(3)In subsection (2), draft explanatory statement, in relation to a proposed compromise or arrangement between a body and its creditors or any class of them or between a body and its members or any class of them, means a statement:(a)explaining the effect of the proposed compromise or arrangement and, in particular, stating any material interests of the directors of the body, whether as directors, as members or creditors of the body or otherwise, and the effect on those interests of the proposed compromise or arrangement in so far as that effect is different from the effect on the like interests of other persons; and(b)setting out such information as is prescribed and any other information that is material to the making of a decision by a creditor or member of the body whether or not to agree to the proposed compromise or arrangement, being information that is within the knowledge of the directors of the body and has not previously been disclosed to the creditors or members of the body.…(4)A compromise or arrangement is binding on the creditors, or on a class of creditors, or on the members, or on a class of members, as the case may be, of the body and on the body or, if the body is in the course of being wound up, on the liquidator and contributories of the body, if, and only if:(a)at a meeting convened in accordance with an order of the Court under subsection (1) or (1A):(i)in the case of a compromise or arrangement between a body and its creditors or a class of creditors—the compromise or arrangement is agreed to by a majority in number of the creditors, or of the creditors included in that class of creditors, present and voting, either in person or by proxy, being a majority whose debts or claims against the company amount in the aggregate to at least 75% of the total amount of the debts and claims of the creditors present and voting in person or by proxy, or of the creditors included in that class present and voting in person or by proxy, as the case may be; and(ii)in the case of a compromise or arrangement between a body and its members or a class of members—a resolution in favour of the compromise or arrangement is:(A)unless the Court orders otherwise—passed by a majority in number of the members, or members in that class, present and voting (either in person or by proxy); and(B)if the body has a share capital—passed by 75% of the votes cast on the resolution; and(b)it is approved by order of the Court.…(6)The Court may grant its approval to a compromise or arrangement subject to such alterations or conditions as it thinks just.…(17)The Court must not approve a compromise or arrangement under this section unless:(a)it is satisfied that the compromise or arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6; or(b)there is produced to the Court a statement in writing by ASIC stating that ASIC has no objection to the compromise or arrangement;but the Court need not approve a compromise or arrangement merely because a statement by ASIC stating that ASIC has no objection to the compromise or arrangement has been produced to the Court as mentioned in paragraph (b).…1319Power of Court to give directions with respect to meetings ordered by the CourtWhere, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit.RELEVANT PRINCIPLES