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Re Aspen Group Ltd

Re Aspen Group Ltd

Case [2015] NSWSC 1718 23 October 2015

Schemes of Arrangement

Jurisdiction

Trustee Duties

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Aspen Group Limited; Aspen Funds Management Limited in its capacity as responsible entity of Aspen Property Trust; Aspen Parks Property Management Ltd and Aspen Funds Management Limited in its capacity as responsible entity of Aspen Parks Property Trust [2015] NSWSC 1718
Hearing dates: 23 October 2015, 3 November 2015
Decision date: 23 October 2015
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Orders in the form proposed by the Plaintiffs on 3 November 2015.

Catchwords: CORPORATIONS – Schemes of arrangement – Application under s 411 Corporations Act 2001 (Cth) for orders convening a meeting of members to consider proposed schemes of arrangement and for approval of the proposed schemes of arrangement – where schemes of arrangement involved the merger of businesses operated by the four Plaintiffs – where merger involves the responsible entity for two trusts – whether to convene meeting of the members – judicial advice sought by responsible entities pursuant to Trustee Act 1925 (NSW) s 63.
Legislation Cited: - Corporations Act 2001 (Cth) pt 5.1, ss 9, 411, 411(1), 411(17)(b), 601GC, 601GC(1), 1319
- Trustee Act 1925 (NSW) s 63
Cases Cited: - CMPS&F Pty Ltd v Crooks Mitchell Ltd (1997) 76 FCR 366
- Re ACM Gold Limited; Re Mt Leyshon Gold Mines (1992) 34 FCR 530
- Re Amcom Telecommunications Ltd (No 2) [2015] FCA 410
- Re APN News & Media Limited [2007] FCA 770; (2007) 62 ACSR 400
- Re Aurora Oil & Gas Ltd [2014] FCA 612
- Re Australian Gas Light Company [2006] FCA 346; (2006) 57 ACSR 67
- Re Cellestis Ltd (No 2) [2011] VSC 329
- Re Coles Group Limited [2007] VSC 389; (2007) 25 ACLC 1380
- Re Hills Motorway Ltd [2002] NSWSC 897; (2002) 43 ACSR 101
- Re Hostworks Group Ltd [2008] FCA 64; (2008) 26 ACLC 137
- Re Lend Lease Primelife Ltd; Re Lend Lease Village Responsible Entity Ltd [2009] NSWSC 1340
- Re Macquarie Private Capital A Limited [2008] NSWSC 323; (2008) 26 ACLC 366
- Re Mirvac Funds Management Limited in its capacity as Responsible Entity of the Mirvac Industrial Trust [2014] NSWSC 1569
- Re Mirvac Limited [1999] NSWSC 457; (1999) 32 ACSR 107
- Re Mitchell Communication Group [2010] VSC 423
- Re Prime Infrastructure Holdings Limited [2010] NSWSC 1104; (2010) 80 ACSR 193
- Re Rural Press Limited [2007] FCA 314; (2007) 61 ACSR 373
- Re Westfield Holdings Limited [2004] NSWSC 458; (2004) 49 ACSR 734
- Wellington Capital Ltd v Australian Securities and Investments Commission [2014] HCA 43; (2014) 106 ACSR 12
Category: Principal judgment
Parties: Aspen Group Limited (First Plaintiff)
Aspen Funds Management Limited in its capacity as responsible entity of Aspen Property Trust (Second Plaintiff)
Aspen Parks Property Management Ltd (Third Plaintiff)
Aspen Funds Management Limited in its capacity as responsible entity of Aspen Parks Property Trust (Fourth Plaintiff)
Representation:

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 Aspen Group Ltd

Details

AGLC: Re Aspen Group Ltd [2015] NSWSC 1718
Case: [2015] NSWSC 1718
Decision Date: 23 October 2015

CaseChat Overview and Summary

In the matter of Aspen Group Ltd, the Court was asked to consider whether a meeting of the members should be convened to consider and approve proposed schemes of arrangement for the merger of businesses operated by four plaintiffs. These businesses are managed by two trusts, and the responsible entities of those trusts sought judicial advice under section 63 of the Trustee Act 1925 (NSW). The court's task was to determine whether the circumstances warranted convening a meeting of the members to consider the proposed schemes of arrangement.

The legal issues before the court centred on the appropriate application of section 411 of the Corporations Act 2001 (Cth). This section allows for the convening of a meeting of members to consider and approve schemes of arrangement. The court had to consider whether the proposed schemes of arrangement met the criteria for convening such a meeting, particularly in light of the involvement of trusts and the role of the responsible entities. The court also needed to assess whether the judicial advice sought by the responsible entities was relevant and appropriate under the circumstances.

The court concluded that the proposed schemes of arrangement did indeed warrant the convening of a meeting of the members to consider and approve them. The court found that the criteria under section 411 of the Corporations Act were satisfied, given the nature and implications of the proposed merger. The court also noted that the judicial advice sought by the responsible entities was pertinent and necessary for ensuring that the interests of the members were properly protected. The court's decision was guided by the need to balance the rights and interests of all parties involved, including the members, the responsible entities, and the trustees.

In light of the findings, the court made orders convening a meeting of the members to consider and approve the proposed schemes of arrangement. The court emphasised the importance of ensuring that the meeting was conducted fairly and in accordance with the relevant legal provisions. The responsible entities were directed to take all necessary steps to facilitate the meeting and to provide adequate information to the members. The orders also included provisions for the protection of the members' interests throughout the process.

Orders