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Re Cortona Resources Ltd

Re Cortona Resources Ltd

Case [2012] FCA 1295 14 November 2012

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FEDERAL COURT OF AUSTRALIA
Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295

Citation: Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295

Party: CORTONA RESOURCES LIMITED (ACN 117 848 790)

File number: WAD 298 of 2012

Judge: BARKER J

Date of judgment: 14 November 2012

Catchwords: CORPORATIONS – scheme of arrangement – application for order that company convene meeting

Legislation: Corporations Act 2001 (Cth) s 9, s 231, s 411, s 411(1), s 411(2)(b), s 411(3), s 411(6), s 411(17), s 412, Pt 5.1
Corporations Regulations 2001 (Cth) Sch 8

Cases cited: Adamus Resources Limited, in the matter of Adamus Resources Limited [2011] FCA 1324
Aston Resources Limited, in the matter of Aston Resources Limited [2012] FCA 229
Industrea Limited, in the matter of Industrea Limited [2012] FCA 1090
oOh!Media Group Limited, in the matter of oOh!Media Group Limited [2012] FCA 26
Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400
Sovereign Life Assurance Company v Dodd [1892] 2 QB 573

Date of hearing: 14 November 2012

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 48

Counsel for the Plaintiff: Mr AJ Papamatheos

Solicitor for the Plaintiff: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 298 of 2012

BETWEEN:
CORTONA RESOURCES LIMITED (ACN 117 848 790)
Plaintiff

JUDGE:

BARKER J

DATE OF ORDER:

14 NOVEMBER 2012

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Pursuant to s 411 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 in Perth, Western Australia on 21 December 2012 at 10:00 am (WST) or on such other date and such other time as the Court may approve (scheme meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the plaintiff and its shareholders (share scheme) which is Annexure B to the draft scheme booklet and explanatory statement, being the document behind Tab 5 to exhibit PB-1 to the affidavit of Peter Jonathan van der Borgh sworn on 9 November 2012 and filed herein (scheme booklet).
2.The scheme booklet, which contains an explanatory statement required by s 412(1)(a) of the Corporations Act, be and is approved, subject to:
(a)correction of any minor typographical or grammatical errors;
(b)any minor amendments required or approved by ASIC for registration under s 412(6) of the Corporations Act;
(c)adopting the marked-up amendments contained in Annexure “RP-3” to the Affidavit of Russell Alan Philip sworn 13 November 2012; and
(d)adopting the marked-up amendments contained in Annexure “RP-[4]” and “RP-5” to the Further Affidavit of Russell Alan Philip sworn 14 November 2012.

3.Subject to registration of the scheme booklet pursuant to s 412(6) of the Corporations Act, the plaintiff is to dispatch, on or before 21 November 2012 or such other date…

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 Cortona Resources Ltd

Details

AGLC: Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295
Case: [2012] FCA 1295
Decision Date: 14 November 2012

CaseChat Overview and Summary

The case before the court was an application by the plaintiff, Cortona Resources Ltd, for an order convening a meeting of its shareholders to consider and potentially approve a proposed scheme of arrangement. The defendants, who were not named in the text, did not oppose the application. The legal issues for the court's determination included whether the scheme of arrangement was fair and reasonable to the company and its shareholders and whether the explanatory statement provided sufficient information for the shareholders to make an informed decision. The court also needed to consider whether the scheme complied with the statutory requirements under the Corporations Act 2001 (Cth).

The court found that the scheme of arrangement was fair and reasonable to the company and its shareholders, and that the explanatory statement provided was adequate. The court was satisfied that the scheme complied with the statutory requirements, including the need for the scheme to be approved by a majority in number and three-quarters in value of the votes cast by the shareholders. The court also noted that the scheme was supported by independent expert reports and that the scheme meeting would be conducted in a manner that ensured the shareholders could make an informed decision.

In light of these findings, the court made several orders, including ordering the plaintiff to convene a meeting of its shareholders to consider and potentially approve the scheme of arrangement. The court also approved the scheme booklet, subject to certain amendments and corrections. The court further ordered that the scheme meeting be conducted in accordance with the Corporations Act and the company's constitution and that voting on the resolution to approve the scheme be conducted by way of poll. The court also made orders regarding the confidentiality of the scheme and scheme booklet and the relisting of the matter following the scheme meeting.

The court's orders provide clarity and guidance for the parties involved in the scheme of arrangement and ensure that the process is conducted in a fair and transparent manner. The court's approval of the scheme booklet and its direction regarding the convening and conduct of the scheme meeting provide certainty for the parties and help to ensure that the scheme is implemented effectively.

Orders

Orders of the court

1. Pursuant to s 411 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 in Perth, Western Australia on 21 December 2012 at 10:00 am (WST) or on such other date and such other time as the Court may approve (scheme meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the plaintiff and its shareholders (share scheme) which is Annexure B to the draft scheme booklet and explanatory statement, being the document behind Tab 5 to exhibit PB-1 to the affidavit of Peter Jonathan van der Borgh sworn on 9 November 2012 and filed herein (scheme booklet).

2. The scheme booklet, which contains an explanatory statement required by s 412(1)(a) of the Corporations Act, be and is approved, subject to:

(a) correction of any minor typographical or grammatical errors;

(b) any minor amendments required or approved by ASIC for registration under s 412(6) of the Corporations Act;

(c) adopting the marked-up amendments contained in Annexure “RP-3” to the Affidavit of Russell Alan Philip sworn 13 November 2012; and

(d) adopting the marked-up amendments contained in Annexure “RP-[4]” and “RP-5” to the Further Affidavit of Russell Alan Philip sworn 14 November 2012.

3. Subject to registration of the scheme booklet pursuant to s 412(6) of the Corporations Act, the plaintiff is to dispatch, on or before 21 November 2012 or such other date as directed by the Court, a document substantially in the form of the scheme booklet (as amended in order 2 above) to the shareholders who appear on the register of members as at 5:00pm (WST) on 15 November 2012 by ordinary pre-paid post (or by airmail to overseas holders).

4. Subject to these orders, the scheme meeting is to be (so far as practicable):

(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 the plaintiff’s constitution that are not inconsistent therewith and that apply to meetings of members;

(b) convened, held and conducted pursuant to s 1319 of the Corporations Act, on the basis that Corporations Regulations 5.6.11 to 5.6.12 and 5.6.13A to 5.6.36A do not apply to the scheme meeting; and

(c) convened using the notice of meeting in the form or the effect of the notice contained in Annexure D to the scheme booklet.

5. Clive Jones or, failing him, Peter van der Borgh is to be appointed to act as chairperson of the scheme meeting and report the result of the scheme meeting to this Court.

6. The chairperson can adjourn the scheme meeting in his discretion.

7. Two shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the scheme meeting.

8. Voting on the resolution to approve the share scheme, for the scheme meeting is to be conducted by way of poll.

9. The matter may be relisted on 9 January 2013 at 10.15am for such application as appropriate following the scheme meeting.

10. If the matter is relisted, then the plaintiff is to give notice of the hearing of the application pursuant to s 411(4) of the Corporations Act and that notice:

(a) is to be published once in each of “The Australian” and “The West Australian” newspapers; and

(b) is to be by an advertisement substantially in the form of “Annexure A” to these Orders, such advertisement to be published at least 3 days before the date fixed for the hearing.

11. The Scheme and Scheme Booklet be confidential to the plaintiff on the Court file until the Explanatory Statement in the Scheme Booklet has been registered with ASIC in accordance with s 412(6) of the Corporations Act.

12. The plaintiff, the Australian Securities Investments Commission and any interested party has liberty to apply to relist the matter on 24 hours’ written notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295

Most Recent Citation

Re Unity Mining Limited (No 2) [2016] VSC 830

Cases citing this decision · 7 of 7 shown

Re Latin Resources Limited
[2024] WASC 513 Para 3

…here the reasons advanced:[138] [137] Outline of submissions par 68, citing Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295 [42] - [45]; Re Anatolia Energy Limited [2015] FCA 1134 [44] - [46]; Re Nzuri Copper Ltd; Ex Parte Nzuri Copper Ltd [2019] WASC 189 [64] ‑ [71]; Talon En…
In the matter of iCar Asia Limited
[2021] NSWSC 1713 Para 26

…ice that would deter other potential bidders from making a competitive offer, by reference to relevant matters identified in Re Cortona Resources Ltd [2012] FCA 1295 at [43]; Re Anatolia Energy Ltd [2015] FCA 1134 at [44]; Re Black Range Minerals Ltd [2015] FCA 1162 at [18] and Re Decimal Software Ltd [2018] FCA 1…
Re Nzuri Copper Ltd
[2019] WASC 189 Para 4

…embers. It too is a matter that the members may properly consider at the meeting in light of the disclosure made.[3] [2] Re Cortona Resources Ltd [2012] FCA 1295. [3] Re Cortona Resources Ltd [43], [45].…
Re Beadell Resources Ltd
[2018] WASC 410 Para 3

…embers. It too is a matter that the members may properly consider at the meeting in light of the disclosure made.[46] [46] Re Cortona Resources Ltd [2012] FCA 1295 [43], [45].…
Decimal Software Limited, in the matter of Decimal Software Limited
[2018] FCA 1647 Para 19

…irer and target could constitute a 'lock up by a side‑wind' was considered in Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295 at [42]‑[45] (Barker J).…
Re Unity Mining Limited (No 2)
[2016] VSC 830 Para 1

…ean Resources Limited ;[25] Re Cytopia Ltd ;[26] Re Toll Holdings Ltd ;[27] and Re Staging Connections Group Ltd .[28] [19][2013] FCA 1212, [40]. [20][2012] FCA 1295, [34], [43]. [21][2009] FCA 180, [4]. [22](2007) 62 ACSR 400, [39]. [23][2010] VSC 367, [27]. [24][2010] VSC 423, [28]. [25][2010] FCA 1190, [22]. [2…
Re Anatolia Energy Ltd
[2015] FCA 1134 Para 8

…ouncements. This approach has been adopted previously: Re Andean Resources Limited [2010] FCA 1190 per Jagot J (at [8]); Re Cortona Resources Limited [2012] FCA 1295 per Barker J (at [20]). Further, in relation to disclosure, there is nothing apparently misleading or deceptive in the Scheme Booklet: see Re NRMA In…

View all 7 citing cases →

Cases cited in this decision · 6 of 6 shown

Industrea Limited, in the matter of Industrea Limited
[2012] FCA 1090 Para 21

…ntly been considered as an acceptable cover page for an explanatory statement by Jagot J in Industrea Limited, in the matter of Industrea Limited [2012] FCA 1090 at [6]. In the circumstances of this proposal I do not consider this inclusion in the booklet presents a reason to withhold the convening order.…
Re Aston Resources Ltd
[2012] FCA 229 Para 5

…ted, in the matter of oOh! Media Group Limited [2012] FCA 26 at [30] (Yates J); Aston Resources Limited, in the matter of Aston Resources Limited [2012] FCA 229 at [32]‑[33].…
Re oOh!Media Group Ltd
[2012] FCA 26 Para 5

…These types of processes are not typically considered to be “class-creating”: oOh!Media Group Limited, in the matter of oOh! Media Group Limited [2012] FCA 26 at [30] (Yates J); Aston Resources Limited, in the matter of Aston Resources Limited [2012] FCA 229 at [32]‑[33].…
Adamus Resources Limited, in the matter of Adamus Resources Limited
[2011] FCA 1324 Para 20

…ty announcements. This Court has accepted this approach before: see, for example, Adamus Resources Limited, in the matter of Adamus Resources Limited [2011] FCA 1324 at [7] (per Siopis J). This is satisfactory in the circumstances of this case.…
Re APN News & Media Ltd
[2007] FCA 770 Para 29

…In these circumstances that there is no significant performance or credit risk in this case: see, for example, Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 ( Re APN News & Media Ltd ) at [23].…
[1892] 2 QB 573
[1892] 2 QB 573 Para 12

…Section 411 does not define the term “class”. However, in Sovereign Life Assurance Company v Dodd [1892] 2 QB 573, Bowen LJ said (at 583) that the term ought to be given such a meaning: … as will prevent the section being so worked as to result in confiscation and injustice, and that it must be confined to those p…

Legislation cited in this decision · 3

Corporations Act 2001 (Cth)
9 2 mentions (from Para 1)
Corporations Regulations 2001 (Cth)
1 mention (from Para 26)
Federal Court Rules 2011 (Cth)
1 mention

Citation:		Cortona Resources Limited, in the matter of Cortona Resources Limited [2012] FCA 1295
Party:		CORTONA RESOURCES LIMITED (ACN 117 848 790)
File number:		WAD 298 of 2012
Judge:		BARKER J
Date of judgment:		14 November 2012
Catchwords:		CORPORATIONS – scheme of arrangement – application for order that company convene meeting
Legislation:		Corporations Act 2001 (Cth) s 9, s 231, s 411, s 411(1), s 411(2)(b), s 411(3), s 411(6), s 411(17), s 412, Pt 5.1 Corporations Regulations 2001 (Cth) Sch 8
Cases cited:		Adamus Resources Limited, in the matter of Adamus Resources Limited [2011] FCA 1324 Aston Resources Limited, in the matter of Aston Resources Limited [2012] FCA 229 Industrea Limited, in the matter of Industrea Limited [2012] FCA 1090 oOh!Media Group Limited, in the matter of oOh!Media Group Limited [2012] FCA 26 Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 Sovereign Life Assurance Company v Dodd [1892] 2 QB 573
Date of hearing:	14 November 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Plaintiff:	Mr AJ Papamatheos
Solicitor for the Plaintiff:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 298 of 2012

JUDGE:	BARKER J
DATE OF ORDER:	14 NOVEMBER 2012
WHERE MADE:	PERTH