FEDERAL COURT OF AUSTRALIA
Associated Advisory Practices Limited, in the matter of Associated Advisory Practices Limited [2013] FCA 761
Citation: Associated Advisory Practices Limited, in the matter of Associated Advisory Practices Limited [2013] FCA 761 Parties: ASSOCIATED ADVISORY PRACTICES LIMITED ACN 118 000 150 File number: NSD 1219 of 2013 Parties: ASSOCIATED ADVISORY PRACTICES (NO 2) LIMITED ACN 126 371 346 File number: NSD 1221 of 2013 Judge: FARRELL J Date of judgment: 1 August 2013 Catchwords: CORPORATIONS – scheme of arrangement – acquisition scheme – content of explanatory statement – class of members – no break fee – description of directors Legislation: Corporations Act 2001 (Cth) ss 411(1), 411(2), 411(4), 411(6), 412(1), 1319
Corporations Regulations 2001 (Cth) schedule 8, rr 5.6.12, 5.6.14 to 5.6.36A
Federal Court (Corporations) Rules 2000 (Cth) r 3.4(3)(b)Cases cited: Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
In re Alabama, New Orleans, Texas and Pacific Junction Railway Company [1891] 1 Ch 213
Re APN News & Media Ltd (2007) 62 ACSR 400
Re Central Pacific Minerals NL [2002] FCA 239
Re CSR Ltd (2010) 183 FCR 358
Re Foundation Healthcare Ltd (2002) 42 ACSR 252
Re Permanent Trustee Co Ltd (2002) 43 ACSR 601Date of hearing: 15 July 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the plaintiffs in NSD 1219 and 1221 of 2013: Mr M Oakes SC Solicitor for the plaintiffs in NSD 1219 and 1221 of 2013: McCullough Robertson Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1219 of 2013
IN THE MATTER OF ASSOCIATED ADVISORY PRACTICES LIMITED
ACN 118 000 150
ASSOCIATED ADVISORY PRACTICES LIMITED
ACN 118 000 150
Plaintiff
JUDGE:
FARRELL J
DATE OF ORDER:
15 JULY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to subsection 411(1) Corporations Act 2001 (Cth) (Act), the Plaintiff convene a meeting of its redeemable preference shareholders (Scheme Meeting), for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed between the Plaintiff and its redeemable preference shareholders (Scheme) being the scheme of arrangement set forth in Annexure D of the explanatory statement in relation to the Scheme, which is Exhibit 1 in the proceeding (Scheme Booklet):
2.The Scheme Meeting be held on 12 August 2013 at Level 2, Fawkner Centre, 499 St. Kilda Road, Melbourne, Victoria, commencing at 10.00am.
3.Pursuant to subsection 411(1) of the Act, the Scheme Booklet be approved for distribution to the redeemable preference shareholders of the Plaintiff.
4.The Scheme Booklet to be dispatched to redeemable preference shareholders of the Plaintiff be in the form, or to the effect of, that which is Exhibit 1, and may be sent by pre-paid post.
5.Jason Anthony Cutrupi or, in his absence, John Barry Smith, act as Chairperson of…
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- Associated Advisory Practices Limited, in the matter of Associated Advisory Practices Limited [2013] FCA 761
- Case
- [2013] FCA 761
- Decision Date
CaseChat Overview and Summary
The court found that the explanatory statements were adequate and met the legal requirements. The court noted that the statements contained all necessary information, including details about the companies, the acquiring company, the terms of the schemes, and the implications of approval. The court also highlighted that the directors had provided detailed descriptions and that no break fee would be payable to the directors in the event of the schemes not proceeding. The explanatory statements were deemed clear, comprehensive, and sufficient to allow the shareholders to make an informed decision.
Consequently, the court made orders under section 411(1) of the Corporations Act 2001 (Cth) to convene meetings of the redeemable preference shareholders of AAP No 1 and AAP No 2 to consider and, if thought fit, approve the proposed schemes. The meetings were scheduled for 12 August 2013, with detailed procedural instructions provided. The court also ordered that the explanatory statements, as set out in Exhibits 1 and 2 of the proceedings, be approved for distribution to the shareholders and that the companies publish notices of the hearings in The Australian newspaper.
Orders
Orders of the court
1. Pursuant to subsection 411(1) Corporations Act 2001 (Cth) (Act), the Plaintiff convene a meeting of its redeemable preference shareholders (Scheme Meeting), for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed between the Plaintiff and its redeemable preference shareholders (Scheme) being the scheme of arrangement set forth in Annexure D of the explanatory statement in relation to the Scheme, which is Exhibit 1 in the proceeding (Scheme Booklet):
2. The Scheme Meeting be held on 12 August 2013 at Level 2, Fawkner Centre, 499 St. Kilda Road, Melbourne, Victoria, commencing at 10.00am.
3. Pursuant to subsection 411(1) of the Act, the Scheme Booklet be approved for distribution to the redeemable preference shareholders of the Plaintiff.
4. The Scheme Booklet to be dispatched to redeemable preference shareholders of the Plaintiff be in the form, or to the effect of, that which is Exhibit 1, and may be sent by pre-paid post.
5. Jason Anthony Cutrupi or, in his absence, John Barry Smith, act as Chairperson of the Scheme Meeting.
6. Except for procedural motions, all voting at the Scheme Meeting be by poll as declared by the Chairperson.
7. The Chairperson of the Scheme Meeting has the power to adjourn such meeting in his absolute discretion.
8. Regulations 5.6.12, and 5.6.14 to 5.6.36A, Corporations Regulations 2001 (Cth) shall not apply to the Scheme Meeting.
9. The Plaintiff publish a notice of hearing of any application to approve the Scheme on or before 7 August 2013, in The Australian newspaper by an advertisement substantially in the form of Annexure A to these Orders, and the Plaintiff shall otherwise be exempted from compliance with Rule 3.4(3)(b) Federal Court (Corporations) Rules 2000 (Cth).
10. The proceeding be stood over to 10.00am on Friday, 16 August 2013 before Farrell J for the hearing of any application to approve the scheme of arrangement.
11. Liberty to restore on two days notice.
12. These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
“A”
Notice of hearing to approve compromise or arrangement
(rule 3.4)
No. NSD1219/2013
FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY: NEW SOUTH WALES
DIVISION: GENERAL
IN THE MATTER OF ASSOCIATED ADVISORY PRACTICES LTD ACN 118 000 150
ASSOCIATED ADVISORY PRACTICES LTD ACN 118 000 150
Plaintiff
TO all the creditors and members of Associated Advisory Practices Ltd ACN 118 000 150 (AAP).
TAKE NOTICE that at 10.00am on 16 August 2013, the Federal Court of Australia at the Law Courts Building, Queen’s Square, Sydney will hear an application by AAP seeking the approval of a compromise or arrangement between the above-named company and its redeemable preference shareholders, proposed by a resolution to be considered, and if thought fit, passed (with or without modification) at the meeting of the redeemable preference shareholders of AAP to be held on 12 August 2013 at Level 2, Fawkner Centre, 499 St. Kilda Road, Melbourne, Victoria, commencing at 10.00am.
If you wish to oppose the approval of the compromise or arrangement, you must file and serve on AAP a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on AAP at its address for service at least one day before the date fixed for the hearing of the application.
The address for service of AAP is McCullough Robertson Lawyers, Level 11, Central Plaza Two, 66 Eagle Street, Brisbane, Queensland 4001.
Name of person giving notice or of person’s legal practitioner: Peter Stokes, McCullough Robertson Lawyers – 07 3233 8714.
1. This proceeding be heard with proceeding NSD 1219 of 2013.
2. The evidence in proceeding NSD 1219 of 2013 be evidence in this proceeding.
3. Pursuant to subsection 411(1) Corporations Act 2001 (Cth) (Act), the Plaintiff convene a meeting of its redeemable preference shareholders (Scheme Meeting), for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed between the Plaintiff and its redeemable preference shareholders (Scheme) being the scheme of arrangement set forth in Annexure D of the explanatory statement in relation to the Scheme, which is Exhibit 2 in the proceeding (Scheme Booklet).
4. The Scheme Meeting be held on 12 August 2013 at Level 2, Fawkner Centre, 499 St. Kilda Road, Melbourne, Victoria, commencing at the later of 11.00am and the time which is ten minutes following close of the scheme meeting the subject of orders in proceeding NSD 1219 of 2013.
5. Pursuant to subsection 411(1) of the Act, the Scheme Booklet be approved for distribution to the redeemable preference shareholders of the Plaintiff.
6. The Scheme Booklet to be dispatched to redeemable preference shareholders of the Plaintiff be in the form, or to the effect of, that which is Exhibit 2, and may be sent by pre-paid post.
7. Jason Anthony Cutrupi or, in his absence, John Barry Smith, act as Chairperson of the Scheme Meeting.
8. Except for procedural motions, all voting at the Scheme Meeting be by poll as declared by the Chairperson.
9. The Chairperson of the Scheme Meeting has the power to adjourn such meeting in his absolute discretion.
10. Regulations 5.6.12, and 5.6.14 to 5.6.36A, Corporations Regulations 2001 (Cth) shall not apply to the Scheme Meeting.
11. The Plaintiff publish a notice of hearing of any application to approve the Scheme on or before 7 August 2013, in The Australian newspaper by an advertisement substantially in the form of Annexure A to these Orders, and the Plaintiff shall otherwise be exempted from compliance with Rule 3.4(3)(b) Federal Court (Corporations) Rules 2000 (Cth).
12. The proceeding be stood over to 10.00am on Friday, 16 August 2013 before Farrell J for the hearing of any application to approve the scheme of arrangement.
13. Liberty to restore on two days notice.
14. These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
“A”
Notice of hearing to approve compromise or arrangement
(rule 3.4)
No. NSD1221/2013
FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY: NEW SOUTH WALES
DIVISION: GENERAL
IN THE MATTER OF ASSOCIATED ADVISORY PRACTICES (NO. 2) LTD ACN 126 371 346
ASSOCIATED ADVISORY PRACTICES (NO. 2) LTD ACN 126 371 346
Plaintiff
TO all the creditors and members of Associated Advisory Practices (No. 2) Ltd ACN 126 371 346 (AAP2).
TAKE NOTICE that at 10.00am on 16 August 2013, the Federal Court of Australia at the Law Courts Building, Queen’s Square, Sydney will hear an application by AAP2 seeking the approval of a compromise or arrangement between the above-named company and its redeemable preference shareholders, proposed by a resolution to be considered, and if thought fit, passed (with or without modification) at the meeting of the redeemable preference shareholders of AAP2 to be held on 12 August 2013 at Level 2, Fawkner Centre, 499 St. Kilda Road, Melbourne, Victoria, commencing at no earlier than 11.00am.
If you wish to oppose the approval of the compromise or arrangement, you must file and serve on AAP2 a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served AAP2 at its address for service at least one day before the date fixed for the hearing of the application.
The address for service of AAP2 is McCullough Robertson Lawyers, Level 11, Central Plaza Two, 66 Eagle Street, Brisbane, Queensland 4001.
Name of person giving notice or of person’s legal practitioner: Peter Stokes, McCullough Robertson Lawyers – 07 3233 8714.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
These are my reasons for making orders on 15 July 2013 under s 411(1) of the Corporations Act 2001 (Cth) (Corporations Act) to convene a meeting of a class of members of each of the respective plaintiff companies to consider approving schemes of arrangement and under s 1319 of the Corporations Act in relation to ancillary matters. The applications by the plaintiff companies were heard together, and the plaintiffs were represented by the same Counsel.THE SCHEMES The first plaintiff company is Associated Advisory Practices Limited ACN 118 000 150 (AAP No 1) and I will refer to the proposed scheme between AAP No 1 and a class of its members as the AAP Scheme. The second plaintiff company is Associated Advisory Practices (No 2) Limited ACN 126 371 346 (AAP No 2) and I will refer to the proposed scheme between AAP No 2 and a class of its members as the AAP2 Scheme. Unless is it is necessary to distinguish between the Schemes for any reason, I will refer to them simply as the “Scheme” or together as the “Schemes”. I may refer to the plaintiff companies individually as “Company” and together as “Companies”. The Schemes are “acquisition” schemes and therefore within the concept of an “arrangement” which has often been approved by Australian courts. For convenience, words which are defined in the booklets which are Exhibit 1 and Exhibit 2 (Scheme Booklets) have the same meaning in these reasons. In general, those terms are used in the way they are commonly used in “acquisition” schemes of arrangement, unless otherwise indicated. The Companies AAP No 1 is an unlisted public company which was registered in Queensland on 23 January 2006. Its principal activity is the provision of financial services and support for boutique licensees, particularly advisory services and support for practice management, professional standards and best practice processes. There are 123 AAP shareholders of which 122 are entitled to vote at the AAP Scheme Meeting. AAP No 2 is an unlisted public company which was registered in Queensland on 4 July 2007. Its principal activity is the same as that of AAP No 1. There are 83 shareholders of which 82 are entitled to vote at the AAP2 Scheme Meeting.Acquirer In each case the acquiring company is Centrepoint Alliance Limited ACN 052 507 507 (CAF), a public company shares in which are listed for quotation on markets operated by the Australian Securities Exchange Limited (ASX). CAF is a specialist financial services company which provides wealth management, financial advice, insurance funding, financial planning, investment advice, risk management, funds management and administrative platform services and finance broking to a diverse range of clients. Following the sale of CAF’s Singapore and Malaysia businesses, CAF will focus on its two principal Australian businesses: funding (through Centrepoint Alliance Premium Funding Pty Limited), and wealth and advice services (through its wholly owned subsidiary Centrepoint Wealth Pty Limited (CPW)). CAF acquired CPW through a merger in December 2010. The last of the CAF shares issued as consideration in the merger with CPW were released from escrow in June 2013.Shareholding structure of the Companies pre and post Schemes