FEDERAL COURT OF AUSTRALIA
Aston Resources Limited, in the matter of Aston Resources Limited [2012] FCA 229
Citation: Aston Resources Limited, in the matter of Aston Resources Limited [2012] FCA 229 Parties: ASTON RESOURCES LIMITED ABN 91 129 361 208 File number: NSD 255 of 2012 Judge: JACOBSON J Date of judgment: 9 March 2012 Catchwords: CORPORATIONS – scheme of arrangement – members scheme – collateral benefit – whether there is a separate class of shareholders Legislation: Corporations Act 2001 (Cth), s 411 Cases cited: Re APN News & Media Limited (2007) 62 ACSR 400
Australian Education Union v Department of Education and Children’s Services [2012] HCA 3
Re Cashcard Australia Limited (2004) 48 ACSR 738
Re Fosters Group Limited (No.2) (2011) VSC 547
Re Hostworks Group Limited (2008) 26 ACLC 137
Re iSOFT Group Limited [2011] FCA 680
Re NRMA Insurance Limited (No 1) (2000) 33 ACSR 595
Opes Prime Stockbroking Limited (No. 2) (2009) 179 FCR 20Date of hearing: 9 March 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 50 Counsel for the Plaintiff: Mr P Wood and Mr J Williams Solicitor for the Plaintiff: Freehills Counsel for Whitehaven: Mr F Gleeson SC Solicitor for Whitehaven: Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 255 of 2012
BETWEEN: ASTON RESOURCES LIMITED ABN 91 129 361 208
Plaintiff
JUDGE:
JACOBSON J
DATE OF ORDER:
9 MARCH 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Corporations Act):
(a)the Plaintiff, Aston Resources Limited ABN 91 129 361 208 (Aston) convene a meeting (Scheme Meeting) of the ordinary shareholders in Aston (other than Whitehaven Coal Limited (Whitehaven) or any of its associates or any person who holds shares in the Plaintiff on behalf of, or for the benefit of, Whitehaven or any of its associates) (Scheme Shareholders), for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement (Scheme) proposed to be made between Aston and the Scheme Shareholders, the terms of which are contained in the Explanatory Statement, a copy of which is at Tab 3 of Exhibit MES2 (the Scheme Booklet);
(b)the Scheme Meeting be held at 10:00am (Brisbane Time) on 16 April 2012, at the Hilton, Level 8, 190 Elizabeth Street, Brisbane QLD;
(c)Mark Anthony James Vaile, or failing him, David John Ryan, be Chairperson of the Scheme Meeting;
(d)the Chairperson of the Scheme Meeting have the power to adjourn the Scheme Meeting in his absolute discretion;
(e)at the Scheme Meeting, a Scheme Shareholder will be entitled to one vote for each fully paid ordinary share in the capital of the Plaintiff that the person is registered as holding at 10.00am (Brisbane time) on 14 April 2012;
(f)the Scheme Booklet be approved for distribution to the Scheme Shareholders;
(g)on or before 15 March 2012 there…
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- AGLC
- Re Aston Resources Ltd [2012] FCA 229
- Case
- [2012] FCA 229
- Decision Date
CaseChat Overview and Summary
The court considered the arguments presented by the parties and reviewed the reasoning in previous cases such as Re Hostworks Group. Despite the fact that the exercise price in this case exceeded the scheme consideration, the court found no significant distinction in the reasoning applied in earlier cases. The court was satisfied with the submissions made by counsel and concluded that the scheme meeting should proceed as per the draft short minutes of order provided. The court's decision was based on the premise that the scheme was fair and equitable, and that convening the scheme meeting was in the best interest of the company and its shareholders.
In light of the court's decision, specific orders were made to facilitate the scheme meeting and its approval process. These included convening the meeting, setting the meeting date and location, appointing a chairperson, and outlining the voting process and distribution of necessary documents. Additionally, certain regulations were exempted from applying to the scheme meeting, and a notice of hearing was mandated to be published in The Australian newspaper. The proceedings were stood over for a later date to hear any applications to approve the scheme, with liberty granted for one-day notice applications.
The final orders of the court included convening the scheme meeting, exempting certain regulations, publishing a notice of hearing, standing over the proceedings, and providing liberty to apply. These orders were to be entered forthwith, ensuring that the scheme could progress as intended.
Orders
Orders of the court
1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Corporations Act):
(a) the Plaintiff, Aston Resources Limited ABN 91 129 361 208 (Aston) convene a meeting (Scheme Meeting) of the ordinary shareholders in Aston (other than Whitehaven Coal Limited (Whitehaven) or any of its associates or any person who holds shares in the Plaintiff on behalf of, or for the benefit of, Whitehaven or any of its associates) (Scheme Shareholders), for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement (Scheme) proposed to be made between Aston and the Scheme Shareholders, the terms of which are contained in the Explanatory Statement, a copy of which is at Tab 3 of Exhibit MES2 (the Scheme Booklet);
(b) the Scheme Meeting be held at 10:00am (Brisbane Time) on 16 April 2012, at the Hilton, Level 8, 190 Elizabeth Street, Brisbane QLD;
(c) Mark Anthony James Vaile, or failing him, David John Ryan, be Chairperson of the Scheme Meeting;
(d) the Chairperson of the Scheme Meeting have the power to adjourn the Scheme Meeting in his absolute discretion;
(e) at the Scheme Meeting, a Scheme Shareholder will be entitled to one vote for each fully paid ordinary share in the capital of the Plaintiff that the person is registered as holding at 10.00am (Brisbane time) on 14 April 2012;
(f) the Scheme Booklet be approved for distribution to the Scheme Shareholders;
(g) on or before 15 March 2012 there be dispatched by pre-paid post, or in the case of a member whose registered address is outside the country by prepaid air-mail, addressed to the relevant addresses set out in the register of members of the Plaintiff:
(i) a document substantially in the form of the Scheme Booklet;
(ii) a proxy form substantially in the form of the document at Tab 7 of Exhibit MES1; and
(iii) an envelope addressed to Computershare Investor Services Pty Limited; and
(h) the time by which proxy forms for the Scheme Meeting must be returned is 10.00am (Brisbane time) on 14 April 2012.
2. Regulations 5.6.11, 5.6.11A, 5.6.12 and 5.6.13A to 5.6.36A (inclusive) of the Corporations Regulations 2001 (Cth) shall not apply to the Scheme Meeting.
3. On or before 7 April 2012, the Plaintiff publish a Notice of Hearing substantially in the form of Annexure ‘A’ hereto in The Australian newspaper and the Plaintiff is relieved from compliance with Rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth) to the extent necessary.
4. The proceedings be stood over to 2:15pm on 18 April 2012 before Justice Jacobson for the hearing of any application to approve the Scheme.
5. There be liberty to apply on one day’s notice.
6. 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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