JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE BEADELL RESOURCES LTD; EX PARTE BEADELL RESOURCES LTD [2018] WASC 410
CORAM: VAUGHAN J
HEARD: 21 DECEMBER 2018
DELIVERED : 21 DECEMBER 2018
FILE NO/S: COR 220 of 2018
EX PARTE
BEADELL RESOURCES LTD
Plaintiff
GREAT PANTHER SILVER LTD
Interested Party
Catchwords:
Corporations law - Scheme of arrangement - Proposed acquisition - Application for orders convening scheme meeting under s 411(1) of the Corporations Act 2001 (Cth)
Legislation:
Corporations Act 2001 (Cth), s 411, s 412
Supreme Court (Corporations) (WA) Rules 2004 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | A J Papamatheos |
| Interested Party | : | T P O'Leary |
Solicitors:
| Plaintiff | : | Herbert Smith Freehills |
| Interested Party | : | Gilbert + Tobin |
Case(s) referred to in decision(s):
Re ACM Gold Ltd; Re Mt Leyson Gold Mines Ltd (1992) 34 FCR 530
Re Anatolia Energy Ltd [2015] FCA 1134
Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400
Re CIC Australia Ltd (No 2) [2015] NSWSC 1314
Re CIC Australia Ltd [2015] NSWSC 557
Re Cobalt One Ltd (No 2) [2017] FCA 1407
Re Cobalt One Ltd [2017] FCA 1228
Re Coles Group Ltd [2007] VSC 389; (2007) 25 ACLC 1,380
Re Cortona Resources Ltd [2012] FCA 1295
Re Cytopia Ltd (No 2) [2010] VSC 4
Re Cytopia Ltd [2009] VSC 560
Re GRD Ltd [2009] FCA 1595
Re Investa Properties Ltd [2007] FCA 1104; (2007) 25 ACLC 1186
Re Kangaroo Resources Ltd; Ex parte Kangaroo Resources Ltd [2018] WASC 327
Re PR Finance Group Ltd [2013] FCA 504; (2013) 94 ACSR 516
Re Rancoo Ltd (1995) 17 ACSR 206
Re Rift Valley Resources Ltd [2012] FCA 952
Re Sierra Mining Ltd [2014] FCA 694
Re Simeon Wines Ltd [2002] SASC 204; (2002) 42 ACSR 454
Re Tawana Resources NL [2018] FCA 1456
Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [2018] WASC 308
Re Westgold Resources Ltd [No 2] [2012] WASC 395
Zenyth Therapeutics Ltd v Smith [2006] VSC 436; (2006) 60 ACSR 548
VAUGHAN J:
Overview
The plaintiff, Beadell Resources Ltd (Beadell), is an Australian public company listed on the official list as conducted by the ASX Ltd (ASX). Great Panther Silver Ltd (Great Panther) is a public company incorporated under the laws of British Columbia, Canada whose securities trade on both the New York (American) Stock Exchange (NYSE) and the Toronto Stock Exchange (TSX).
On 24 September 2018 Great Panther announced the proposed acquisition of Beadell via a scheme of arrangement pursuant to pt 5.1 of the Corporations Act 2001 (Cth). Great Panther seeks to acquire 100% of Beadell's ordinary shares for a consideration comprising the issue of 0.0619 common shares of Great Panther for each ordinary share of Beadell. If effectuated the proposed scheme will result in Beadell shareholders holding 38% of the combined entity. Beadell will be delisted from the ASX.
By an originating process dated 6 December 2018 Beadell sought orders under s…
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- AGLC
- Re Beadell Resources Ltd [2018] WASC 410
- Case
- [2018] WASC 410
- Decision Date
CaseChat Overview and Summary
The court found that Beadell Resources Ltd had complied with the relevant statutory provisions and had taken reasonable steps to ensure the shareholders were adequately informed about the proposed scheme. The court also determined that the scheme booklet, subject to certain minor amendments and corrections, was fair and reasonable to the shareholders. The court approved the scheme booklet, subject to certain conditions, and made orders convening the scheme meeting and setting out the procedural requirements for the meeting. The court emphasised the importance of ensuring that shareholders received all necessary information in a timely manner and that the meeting was conducted in accordance with the Corporations Act and the company's constitution.
In summary, the court made orders convening the scheme meeting and setting out the procedural requirements for the meeting, subject to certain conditions. The court found that Beadell Resources Ltd had complied with the relevant statutory provisions and had taken reasonable steps to ensure the shareholders were adequately informed about the proposed scheme. The court approved the scheme booklet, subject to certain minor amendments and corrections, and made orders convening the scheme meeting and setting out the procedural requirements for the meeting. The proceedings were stood over to allow for the hearing of any application to approve the proposed scheme.
Orders
Orders of the court
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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
For the reasons given I made orders in these terms:1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), the plaintiff convene a meeting of holders of fully paid ordinary shares in the capital of the plaintiff (shareholders) to be held on 12 February 2019 at The Celtic Club, 48 Ord Street, West Perth, Western Australia to commence at 10.00 am AWST (scheme meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed to be entered into between the plaintiff and its shareholders (scheme), a copy of which is contained in Annexure B to Attachment TDG23 to the fourth affidavit of Thomas David Gray affirmed 20 December 2018 and filed herein.2.The scheme booklet contained in Attachment TDG23 to the fourth affidavit of Thomas David Gray affirmed 20 December 2018 which contains the explanatory statement required by section 412(1)(a) of the Corporations Act is approved for distribution to the shareholders, subject to:(a)correction of any minor typographical or grammatical errors and final typesetting and formatting;(b)any minor amendments required or approved by ASIC for registration under section 412(6) of the Corporations Act;(c)correction or update of any relevant date references or last trading prices;(d)adopting as Annexure A the Deloitte Report contained in Attachment NLI2 to the affidavit of Nicolette Louise Ivory sworn 18 December 2018, with any necessary changes contemplated by (a), (b) or (c) above; and(e)adopting the proxy form, as suitably personalised, contained in Attachment TDG21 to the fourth affidavit of Thomas David Gray affirmed 20 December 2018.3.Subject to these orders, and pursuant to section 1319 of the Corporations Act, the scheme meeting is to be:(a)convened, held and conducted in accordance with the provisions of Part 2G.2 of the Corporations Act that apply to members of a company and the provisions of Beadell's constitution that are not inconsistent therewith and that apply to meetings of members;(b)convened, held and conducted as if rule 2.15 of the Supreme Court (Corporations) (WA) Rules 2004 (WA) does not apply; and(c)convened using the notice of meeting substantially in the form or to the general effect of the notice contained in Annexure D of the scheme booklet.4.Subject to registration of the scheme booklet pursuant to section 412(6) of the Corporations Act, the plaintiff is to dispatch on or before 11 January 2019, a document substantially in the form of the scheme booklet (approved above), any applicable proxy form (or a link to a website for any electronic proxy lodgement) and any applicable sale facility election form (or a link to a website for any electronic lodgement of the sale facility election form) to the shareholders who appear on the register of members as at 5.00 pm (AWST) on 28 December 2018 as follows: (a)to each shareholder who has nominated an electronic address for the purposes of receiving notices of meeting from the plaintiff, an email to such address substantially in the form of Attachment GMB3 to the affidavit of Gregory Michael Barrett affirmed 19 December 2018; and(b)to each other shareholder, by any form of post, mail or courier to the address as set out in the register of the plaintiff's members.5.Dispatch in accordance with order 4 (above) on or before 11 January 2019 is taken to be sufficient notice of the scheme meeting.6.If it after comes to the attention of the plaintiff that any email dispatched in accordance with order 4(a) above has returned an undeliverable or undelivered receipt for a shareholder's nominated email address then, in respect of that shareholder, the plaintiff is to dispatch, within a reasonable time thereafter, a document substantially in the form of the scheme booklet and any applicable proxy form, in accordance with order 4(b).7.Craig Leslie Readhead or, failing him, Nicole Adshead-Bell, is to be the chairperson of the scheme meeting.8.The chairperson of the scheme meeting may adjourn the scheme meeting in his or her absolute discretion to such time, date and place as he or she considers appropriate.9.Three shareholders present in person or by proxy, corporate representative or attorney under power will constitute a quorum for the scheme meeting.10.Each shareholder, present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of the plaintiff that the shareholder is registered as holding at 10:30 am (AWST) on 10 February 2019.11.Voting on the resolution to approve the scheme at the scheme meeting is to be conducted by way of poll.12.The time by which proxy forms must be returned or lodged online in accordance with any instructions given on the proxy form is on 10 February 2019 at 10.30 am (AWST).13.If the matter is to be relisted, then on or before 11 February 2019 the plaintiff is to publish a completed notice of hearing substantially in the form of Annexure 'A' hereto once in The Australian newspaper and Beadell is otherwise relieved from compliance with Rule 3.4 of the Supreme Court (Corporations) (WA) Rules 2004 (WA). 14.The proceedings are stood over to 8.30 am on 15 February 2019 for the hearing of any application to approve the proposed scheme.15.A copy of these orders is to be lodged with the Australian Securities and Investments Commission before 5.30 pm on 21 December 2018 (AWST).16.Liberty to apply.