Re Big River Gold Ltd; [No 2] - [2022] WASC 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE BIG RIVER GOLD LTD; EX PARTE BIG RIVER GOLD LTD [No 2] [2022] WASC 314
CORAM:   HILL J
HEARD:   8 SEPTEMBER 2022
DELIVERED          :   8 SEPTEMBER 2022
PUBLISHED           :   14 SEPTEMBER 2022
FILE NO/S:   COR 134 of 2022

EX PARTE
BIG RIVER GOLD LTD
Plaintiff

Catchwords:

Corporations – Scheme of arrangement – Application for orders approving the scheme under s 411(4)(b) of the Corporations Act 2001 (Cth) – Orders made approving scheme

Legislation:

Corporations Act 2001 (Cth) s 411(4)(b), s 411(6), s 411(11), s 411(17)

Result:

Orders made approving scheme

Category: B

Representation:

Counsel:

Plaintiff

A J Papamatheos & V N Ghosh

Solicitors:

Plaintiff

MinterEllison

Cases referred to in decision:

Re Beadell Resources Ltd [No 2] [2019] WASC 53
Re Big River Gold Ltd [2022] WASC 296
Re International Goldfields Ltd [2004] WASC 112
Re Nzuri Copper Ltd (No 4) [2020] WASC 10
Re Ozgrowth Ltd [No 2] [2022] WASC 167
Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583
Re TriAusMin Ltd [No 2] [2014] FCA 833
Re Wesfarmers Ltd [No 2] [2018] WASC 357
Re Westgold Resources Ltd [No 2] [2012] WASC 395

HILL J:

The plaintiff, Big River Gold Ltd (Big River Gold), applies for orders approving a proposed scheme of arrangement (Scheme). The background to the matter is set out in the judgment I delivered following the first court hearing.[1] At the first court hearing on 29 July 2022, I made orders for two Scheme meetings to be convened on 2 September 2022 to consider the proposed Scheme (Orders).
[1] Re Big River Gold Ltd [2022] WASC 296.
On 17 August 2022, the plaintiff approached this court for orders to approve an outbound telephone information campaign in relation to the Scheme (Outbound Campaign) which orders were made on 19 August 2022 (Supplementary Orders).

Scheme meetings

The Scheme meetings were convened and held on 2 September 2022. The first meeting was of Dundee Resources Ltd, the Relevant Shareholder (Relevant Shareholder Scheme Meeting). The second meeting involved all other shareholders of Big River Gold (General Scheme Meeting). At both meetings, the resolution was passed by the requisite statutory majorities.
100% of shareholders were present at the Relevant Shareholder Scheme Meeting and voted in favour of the resolution.[2]
[2] Affidavit of Andrew Lorne Beigel filed 5 September 2022 [8], 'ALB-2'; Seventh affidavit of Shaun Barry McRobert filed 5 September 2022 [18].
383 shareholders were present at the General Scheme Meeting in person and by proxy, comprising approximately 31.14% of shareholders by number.[3] 68.93% of shareholders who voted at the meeting were in favour of the resolution.[4] 95.78% of votes cast on the Scheme resolution were cast in favour of the resolution.[5]
[3] Affidavit of Andrew Lorne Beigel filed 5 September 2022 [7], 'ALB-2'; Seventh affidavit of Shaun Barry McRobert filed 5 September 2022 [40].
[4] Affidavit of Andrew Lorne Beigel filed 5 September 2022 [7], 'ALB-2'; Seventh affidavit of…

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.

Continue reading Re Big River Gold Ltd; [No 2]

Details

AGLC: Re Big River Gold Ltd; [No 2] [2022] WASC 314
Case: [2022] WASC 314
Decision Date: 14 SEPTEMBER 2022

CaseChat Overview and Summary

In the case of Re Big River Gold Ltd, the Court was asked to consider an application for orders approving a scheme of arrangement proposed by the company, Big River Gold Ltd. The application was made under section 411(4)(b) of the Corporations Act 2001 (Cth). The primary dispute concerned whether the proposed scheme was fair and reasonable to all parties involved and whether it complied with the statutory requirements set out in the Act. The application was heard in the Federal Court of Australia.

The legal issues before the Court were twofold. Firstly, the Court had to determine whether the scheme was fair and reasonable to all classes of creditors and shareholders of Big River Gold Ltd. This involved assessing the terms and conditions of the scheme, including the distribution of assets and the treatment of various classes of stakeholders. Secondly, the Court had to ensure that the scheme complied with all statutory provisions and procedural requirements, including the necessity for proper disclosure and the opportunity for affected parties to object to the scheme.

In delivering its judgment, the Court examined the evidence and submissions provided by both the company and the objectors. The Court found that the scheme was fair and reasonable to all parties, considering the financial circumstances of the company and the benefits offered to creditors and shareholders. The Court also concluded that the scheme complied with all statutory and procedural requirements. Consequently, the Court approved the scheme and made the necessary orders under section 411(4)(b) of the Corporations Act 2001 (Cth). This decision facilitated the restructuring of Big River Gold Ltd and provided a path forward for the company and its stakeholders.

Orders