Re Avita Medical Ltd

This case concerns an application by Avita Medical Ltd for approval of a scheme of arrangement under s 411 of the Corporations Act 2001 (Cth). The application was made in light of the difficulties posed by the COVID-19 pandemic, which made it impractical to hold a physical meeting of the company's shareholders to approve the scheme. The court was required to determine whether it could order that the scheme meeting be held as a virtual meeting, using audio and audio-visual technology, rather than requiring a physical gathering of shareholders. This raised issues about the extent to which the court could override the company's constitution to allow a virtual meeting, and whether the proposed method of holding the meeting would allow for proper participation by shareholders and compliance with the requirements of the Act.

The court considered two recent decisions of the Federal Court which had permitted virtual meetings of creditors during company administrations, as well as guidelines issued by the Australian Securities and Investment Commission (ASIC) in response to the pandemic. It accepted the plaintiff's submission that the court's powers under ss 411 and 1319 of the Act allowed for the ordering of a virtual scheme meeting, notwithstanding the provisions of the plaintiff's constitution. The court was satisfied that the proposed method of holding the virtual meeting, including the use of technology to enable voting and discussion, was sufficient to allow for proper participation by shareholders and compliance with the requirements of the Act.

The court made orders allowing the scheme meeting to be held as a virtual meeting, with shareholders and proxyholders given access online and able to participate in discussion and voting through the use of audio and audio-visual technology. The plaintiff was also required to make available a helpline to assist shareholders who experienced technical difficulties. The orders also provided that the provisions of Part 2G.2 of the Act and the plaintiff's constitution, insofar as they were not inconsistent with the Act, would apply to the conduct of the scheme meeting. The plaintiff was given liberty to apply for any variation of these orders.