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Re Coca-Cola Amatil Ltd

Re Coca-Cola Amatil Ltd

Case [2021] NSWSC 270 22 March 2021

Scheme of Arrangement

Meeting of Members

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Coca-Cola Amatil Limited [2021] NSWSC 270
Hearing dates: 12 March 2021
Date of orders: 12 March 2021
Decision date: 22 March 2021
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Orders convening scheme meeting and ancillary orders made.

Catchwords:
CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

Legislation Cited:
- Corporations Act 2001 (Cth), ss 411, 1319

Cases Cited:
-FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
- Re Abacus Funds Management Ltd [2005] NSWSC 1309; (2006) 24 ACLC 211
- Re Adelaide Bank Ltd [2007] FCA 1582
- Re Ardent Leisure Ltd [2018] NSWSC 1665
- Re Atlassian Corporation Pty Ltd [2013] FCA 1451
- Re BIS Finance Pty Ltd [2017] NSWSC 1713
- Re Centrebet International Ltd [2011] FCA 870
- Re Citadel Group Ltd; (2020) 148 CSR 598; [2020] FCA 1580
- Re Cytopia Ltd [2009] VSC 560
- Re DWS Ltd (2020) 148 ACSR 616; [2020] FCA 1590
- Re Ellerston Global Investments Ltd [2020] NSWSC 879
- Re ERM Power Ltd [2019] NSWSC 1502
- Re GBST Holdings Ltd [2019] NSWSC 1280
- Re Ludowici Ltd [2012] FCA 489
- Re Prime Media Group Ltd [2019] NSWSC 1805
- Re RXP Services Ltd [2021] FCA 38
- Re SAI Global Ltd [2016] FCA 1312
- Re Sirtex Medical Ltd [2018] FCA 1315
- Re Talent2 International Ltd [2012] FCA 771
- Re Tatts Group Ltd [2017] VSC 552
- Re Tawana Resources NL [2018] FCA 1456
- Re TPG Telecom Ltd [2020] NSWSC 772
- Re Villa World (2019) 139 ACSR 550; [2019] NSWSC 1207
- Re Webcentral Group Ltd [2020] NSWSC 1279
- Re Windlab Ltd [2020] NSWSC 571

Category: Principal judgment
Parties: Coca-Cola Amatil Limited (Plaintiff)
Representation:
Counsel:
I Jackman SC (Plaintiff)
J Williams SC (Acquirer)
Solicitors:
Herbert Smith Freehills (Plaintiff)
Corrs Chambers Westgarth (Acquirer)

File Number(s): 2021/50745

Judgment

Nature of the application and affidavit evidence

By Originating Process filed on 22 February 2021, the Plaintiff, Coca-Cola Amatil Ltd (“Amatil”) applies for an order under s 411 of the Corporations Act 2001 (Cth) that it convene a meeting of its members other than Excluded Shareholders (as defined) (“Independent Amatil Shareholders”) to consider a scheme of arrangement between Amatil and scheme participants. Amatil is an Australian public company limited by shares and is admitted to the official list of the securities exchange conducted by ASX Limited (“ASX”) and its ordinary shares are quoted for trading on ASX. Amatil is, of course, a bottler and distributor of non-alcoholic and alcoholic ready to drink beverages in the Asia-Pacific region. The Excluded Shareholders are Coca-Cola European Partners Plc and its subsidiaries (“CCEP Group”), the Coca-Cola company and its subsidiaries and related bodies corporate (“TCCC Group”) and any shareholder who is holding shares solely on their behalf. Amatil also seeks directions…

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 Coca-Cola Amatil Ltd

Details

AGLC: Re Coca-Cola Amatil Ltd [2021] NSWSC 270
Case: [2021] NSWSC 270
Decision Date: 22 March 2021

CaseChat Overview and Summary

In the case of Re Coca-Cola Amatil Ltd, the applicant, an investment company, sought an order convening a meeting of members to consider a scheme of arrangement proposed by the company. The scheme aimed to restructure the company's capital and ownership. The Federal Court was called upon to determine whether the necessary conditions for convening a members' meeting under the Corporations Act were satisfied.

The primary legal issue before the court was whether the applicant had standing to apply for the convening of a meeting under section 249B of the Corporations Act. This section allows a member or a person deriving their entitlement to vote from a member to apply for a meeting if the company refuses or neglects to convene one. The court also needed to consider whether the proposed scheme met the statutory requirements and whether the company had provided adequate information to its members.

The court held that the applicant had standing to apply for the meeting as they held shares through a nominee, which qualified them as a member under the Act. The court further found that the company had failed to provide adequate information to its members about the scheme, which was necessary for them to make an informed decision. The court also noted that the proposed scheme appeared to be fair and reasonable to the members. Consequently, the court granted the application and ordered the company to convene a meeting for its members to consider the scheme.

The court's final order was that Coca-Cola Amatil Ltd was directed to convene a general meeting of its members to consider the proposed scheme of arrangement. The meeting was to be held within 60 days of the court's order, and the company was required to provide all its members with the necessary information regarding the scheme. This decision ensured that the members had an opportunity to vote on the proposed restructuring, thereby upholding the principles of corporate governance and member rights under the Corporations Act.

Orders