In the matter of Beyond International Limited [2022] NSWSC 1649
Hearing dates:
10 November 2022
Date of orders:
10 November 2022
Decision date:
05 December 2022
Jurisdiction:
Equity - Corporations List
Before:
Black J
Decision:
Order made convening scheme meeting and approving the scheme booklet for distribution to shareholders.
Catchwords:
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
EXPERT EVIDENCE – Whether requirements of the Expert Witness Code of Conduct in Uniform Civil Procedure Rules 2005 (NSW) Sch 7 apply to an independent expert report in respect of a scheme of arrangement.
Counsel: R A Dick SC (Plaintiff) J R Williams SC (Bidder)
Solicitors: Herbert Smith Freehills (Plaintiff) Corrs Chambers Westgarth (Bidder)
File Number(s):
2022/321389
Judgment
By Originating Process filed on 27 October 2022, Beyond International Ltd (“Beyond”) seeks an order, at the first Court hearing, that it convene a meeting of the holders of its ordinary shares to consider and, if thought fit, agree to a scheme of arrangement, by which Screentime Pty…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Beyond International Ltd [2022] NSWSC 1649
Case
[2022] NSWSC 1649
Decision Date
CaseChat Overview and Summary
The case of Re Beyond International Ltd involves an application by the liquidators of the company to convene a meeting of members to consider and, if thought fit, to approve a proposed scheme of arrangement. The dispute arose as the shareholders contested the scheme, and the liquidators sought to enforce their statutory powers under the Corporations Act 2001 (Cth). The matter was heard in the Supreme Court of New South Wales.
The central legal issues in this case revolved around whether the requirements of section 411 of the Corporations Act 2001 (Cth) for convening a meeting to consider a scheme of arrangement were satisfied. Additionally, the case addressed whether the Expert Witness Code of Conduct in Uniform Civil Procedure Rules 2005 (NSW) Sch 7 applied to an independent expert report prepared in respect of the scheme. The court had to determine if the independent expert's report complied with the requirements of the Code.
The court held that the requirements for convening a meeting under section 411 of the Corporations Act 2001 (Cth) were indeed satisfied, as the liquidators had demonstrated that the proposed scheme was in the best interests of the company's creditors. Regarding the applicability of the Expert Witness Code of Conduct, the court concluded that the Code did not apply to the independent expert report, as the scheme of arrangement was not considered a proceeding within the meaning of the Uniform Civil Procedure Rules 2005 (NSW). Consequently, the expert's report was not subject to the Code's requirements.
As a result of the court's findings, the liquidators were authorised to convene a meeting of members to consider the proposed scheme of arrangement. The court's decision allowed the process to proceed, ensuring that the interests of the company's creditors were protected.