Re Auzex Resources Ltd (No 2)

Case [2012] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

Re Auzex Resources Ltd (No 2) [2012] QSC 101

PARTIES:

AUZEX RESOURCES LIMITED ABN 108 444 606

(applicant)

FILE NO:

1330 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED EX TEMPORE ON:

27 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2012

JUDGE:

Applegarth J

ORDER:

1. Pursuant to section 411(4)(b) and section 411(6) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the Applicant and its shareholders, other than GGG Resources plc (UK company number 05277251), being in the form contained in Appendix 2 of the scheme booklet which was registered with the Australian Securities and Investments Commission on 17 February 2012 and assigned document number 027851566, be approved, subject to the following alterations:

              (a)     deletion of the date described as "[ ] February 2012" in the definition of Scheme Deed Poll and replacement with the date "14 February 2012"; and

              (b)     deletion of the square brackets (i.e. "[  ]") where they appear in clauses 2.1(c), 2.1(2)(i), 2.1(c)(ii), 2.2(b), 2.2(b)(i) and 2.2(b)(ii),

so that the scheme of arrangement as altered and approved is in the form of Exhibit JK-7 to the third affidavit of Jamie Joha Neale Whistler Kerr sworn on 26 March 2012. 

2.    The Applicant lodge with the Australian Securities and Investments Commission a copy of the approved scheme of arrangement at the time of lodging a copy of these orders.  

3. Pursuant to section 411(12) of the Corporations Act, the Applicant be exempted from compliance with section 411(11) of the Corporations Act in relation to the order in paragraph 1 above.

4.     There be no order as to costs. 

CATCHWORDS:

CORPORATIONS – ARRANGEMENTS AND RECONSTRUCTIONS – SCHEMES OF ARRANGEMENT – APPROVAL OF SCHEME BY COURT – Generally – Second court hearing – Order sought for approval of scheme with minor alterations – Whether Court’s discretion should be exercised to approve the scheme

Corporations Act 2001 (Cth), s 411

Re Auzex Resources Limited [2012] QSC 40, cited
Re Investorinfo Ltd (2006) 24 ACLC 44; [2005] FCA 1848, cited
Re Professional Investment Holdings Ltd (No 2) [2010] FCA 1336, cited

Re Seven Network Ltd (No 3) (2010) 267 ALR 683; [2010] FCA 400, cited

COUNSEL:

M Oakes SC for the applicant

SOLICITORS:

Thomsons Lawyers for the applicant

  1. The applicant, Auzex Resources Limited (“Auzex”), applies for certain orders at this the “second court hearing”.

  1. The background to this matter is set out in a judgment which I gave following the first court hearing.[1]  At that first court hearing I made an order for the conduct of a meeting.  The meeting was held and there was an overwhelming vote in favour of the scheme:  99.8 percent of the votes cast in favour of it and 97.7 percent of the persons present were in favour of it.

    [1]Re Auzex Resources Limited [2012] QSC 40.

  1. No shareholder or other person has indicated they wish to appear at today's…

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Details
AGLC
Re Auzex Resources Ltd (No 2) [2012] QSC 101
Case
[2012] QSC 101
Decision Date

CaseChat Overview and Summary

The case of Re Auzex Resources Ltd (No 2) involved Auzex Resources Ltd, an applicant, and its shareholders, with GGG Resources plc being an exception. The dispute pertained to the approval of a scheme of arrangement under the Corporations Act 2001. This was the second court hearing regarding the approval of the scheme, with the applicant seeking an order for approval with minor alterations. The legal issues before the court involved the court's discretion in approving the scheme of arrangement, specifically whether the alterations proposed by the applicant should be approved, and if the applicant should be exempted from certain compliance requirements.

The court considered the nature and impact of the proposed alterations to the scheme, including the deletion of specific dates and brackets. It examined whether the alterations were minor and insubstantial, and whether they would affect the fairness and appropriateness of the scheme for all stakeholders. The court also considered the arguments of the applicant regarding the necessity of these alterations for the scheme's implementation. The court was required to balance the discretion afforded to it under the Corporations Act with the need to ensure that the scheme was fair and equitable for all parties involved.

In its decision, the court found that the proposed alterations were indeed minor and insubstantial, and did not materially affect the fairness of the scheme. The court exercised its discretion to approve the scheme with the specified alterations. Additionally, the court granted the applicant exemption from certain compliance requirements, as requested. The court's decision was based on a detailed examination of the scheme and the proposed changes, ensuring that the interests of all stakeholders were adequately protected.

The orders of the court approved the scheme of arrangement with the specified alterations, mandated the applicant to lodge a copy of the approved scheme with the Australian Securities and Investments Commission, exempted the applicant from certain compliance requirements, and made no order as to costs.

Orders

Orders of the court

1. Pursuant to section 411(4)(b) and section 411(6) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the Applicant and its shareholders, other than GGG Resources plc (UK company number 05277251), being in the form contained in Appendix 2 of the scheme booklet which was registered with the Australian Securities and Investments Commission on 17 February 2012 and assigned document number 027851566, be approved, subject to the following alterations:

(a) deletion of the date described as "[ ] February 2012" in the definition of Scheme Deed Poll and replacement with the date "14 February 2012"; and

(b) deletion of the square brackets (i.e. "[ ]") where they appear in clauses 2.1(c), 2.1(2)(i), 2.1(c)(ii), 2.2(b), 2.2(b)(i) and 2.2(b)(ii),

so that the scheme of arrangement as altered and approved is in the form of Exhibit JK-7 to the third affidavit of Jamie Joha Neale Whistler Kerr sworn on 26 March 2012.

2. The Applicant lodge with the Australian Securities and Investments Commission a copy of the approved scheme of arrangement at the time of lodging a copy of these orders.

3. Pursuant to section 411(12) of the Corporations Act, the Applicant be exempted from compliance with section 411(11) of the Corporations Act in relation to the order in paragraph 1 above.

4. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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