FEDERAL COURT OF AUSTRALIA
Crown Resorts Limited, in the matter of Crown Resorts Limited [2022] FCA 367
File number: VID 111 of 2022 Judgment of: O'BRYAN J Date of judgment: 29 March 2022 Date of publication of reasons: 8 April 2022 Catchwords: CORPORATIONS – scheme of arrangement for the transfer of the company’s shares to a third party acquirer – first court hearing – order sought under s 411(1) of the Corporations Act 2001 (Cth) – relevant considerations – consideration of use of electronic methods of communication to convene and conduct the scheme meeting – consideration of order to permit the postponement of the meeting – orders made for convening of meeting Legislation: Corporations Act 2001 (Cth) ss 249R, 253Q (repealed), 253RA (repealed), 253RB (repealed), 253TA, 411, 412, 1319, 1687B, 1687C
Corporations Amendment (Meetings and Documents) Act 2022 (Cth) Sch 2
Treasury Laws Amendment (2021 Measures No 1) Act 2021 (Cth) Sch 1
Federal Court (Corporations) Rules 2000 (Cth) rr 2.4(2), 3.2, 3.3(1)
Corporations Regulations 2001 (Cth) reg 5.1.01 and Sch 8
ASIC Corporations (Virtual-only Meetings) Instrument 2022/129
Cases cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
Japara Healtchare Limited, in the matter of Japara Healthcare Limited [2021] FCA 1150; 156 ACSR 695
Re ACM Gold Ltd (1992) 34 FCR 530
Re Amcor Ltd [2019] FCA 346
Re APN News & Media Limited [2007] FCA 770; 62 ACSR 400
Re Arthur Yates & Co Ltd [2001] NSWSC 40; 36 ACSR 758
Re Asaleo Care Limited [2021] FCA 406
Re Biosceptre International Limited [2013] FCA 1429
Re Coles Group Ltd (No 2) [2007] VSC 523; 65 ACSR 494
Re Coles Group Ltd [2007] VSC 389; 25 ACLC 1380
Re DuluxGroup Ltd [2019] FCA 961; 136 ACSR 546
Re English, Scottish and Australian Chartered Bank [1893] 3 Ch 385
Re Foundation Healthcare Ltd [2002] FCA 742; 42 ACSR 252
Re Healthscope Ltd [2010] VSC 367
Re Healthscope [2019] FCA 542; 139 ACSR 608
Re Lonsdale Financial Group Ltd [2007] VSC 394
Re Macquarie Private Capital A Ltd [2008] NSWSC 323; 26 ACLC 366
Re NRMA Insurance Ltd (No 1) [2000] NSWSC 82; 156 FLR 349
Re Redflex Holdings Limited [2021] FCA 417
Re Skilled Group Ltd (No 1) [2015] VSC 789; 113 ACSR 525
Re Toll Holdings Ltd [2015] VSC 123
Re Veda Advantage Limited [2007] FCA 822
Re Verdant Minerals Ltd [2019] FCA 556
Re Wellcom Group Limited [2019] FCA 165
Re Westfield Holdings Ltd [2004] NSWSC 458; 49 ACSR 734
Ross Human Directions Ltd [2010] ATP 8
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 96 Date of hearing: 29 March 2022 Counsel for the Plaintiff: Mr N Young QC with Mr K Loxley Solicitor for the Plaintiff: Herbert Smith Freehills Counsel for SS…
Continue reading Re Crown Resorts Limited
Sign in free to access the full text
- AGLC
- Re Crown Resorts Limited [2022] FCA 367
- Case
- [2022] FCA 367
- Decision Date
CaseChat Overview and Summary
The court accepted that the scheme was subject to several conditions, including regulatory approvals, which could necessitate a postponement. Given the urgency of Crown Resorts Limited's regulatory environment, the court made the orders sought by Crown Resorts Limited. The court emphasised that if the scheme meeting were postponed for a lengthy period, it might be necessary to address whether the information provided to the shareholders remained current. This matter would be considered at the second court hearing if relevant. The court concluded that it was appropriate to make the orders sought by Crown Resorts Limited.
The court ordered the convening and holding of the scheme meeting of Crown Resorts Limited's shareholders, excluding Midnight Acacia Holdings Pty Limited and any other related body corporate of SS Silver II Pty Ltd, for the purpose of considering and voting on the proposed scheme of arrangement. The meeting was to be held on 29 April 2022 at 10:00am (AEST) and conducted electronically without the shareholders being physically present. The court also ordered that compliance with certain rules be dispensed with, and that a notice of hearing be published in The Australian newspaper before the hearing of any application to approve the scheme. The further hearing of the originating process was adjourned to a later date.
Orders
Orders of the court
1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act), the Plaintiff convene and hold a meeting (Scheme Meeting) of its shareholders, excluding Midnight Acacia Holdings Pty Limited (and any other Related Body Corporate of SS Silver II Pty Ltd (ACN 644 174 890)), (Crown Shareholders):
(a) for the purpose of considering, and, if thought fit, agreeing (with or without modification), to the scheme of arrangement (Scheme) proposed to be made between the Plaintiff and Crown Shareholders, the terms of which are set out in Annexure A to these orders; and
(b) to be held on 29 April 2022 at 10:00am (AEST, being Melbourne time) and to be conducted electronically through an online platform without Crown Shareholders being physically present (which is to be accessed in accordance with the instructions included in the notice of meeting to be sent to shareholders).
2. The Scheme Meeting be convened by sending on or before 31 March 2022:
(a) an email to each Crown Shareholder who has nominated an electronic address for the purposes of receiving notices of meeting and proxy forms from the Plaintiff (Email Shareholder) (or, in the case of joint holders, to the holder whose name appears first in the Plaintiff’s register), such email to be substantially in the form of Annexure RAL-9 to the Affidavit of Rodd Ashton Levy dated 28 March 2022 (Second Levy Affidavit) which contains links to:
(i) a website from which the Email Shareholder can download an electronic copy of a document substantially in the form of the Scheme Booklet, a draft of which is at Annexure RAL-5 to the Second Levy Affidavit incorporating the amendments set out in RAL-8 to the Second Levy Affidavit (which contains among other things the proposed Scheme of Arrangement at Annexure 2 and Notice of Scheme Meeting at Annexure 4) (Scheme Booklet);
(ii) a website from which the Email Shareholder can download an electronic copy of a document substantially in the form of the document entitled ‘Online Meeting Guide’, a copy of which is at Annexure SAH-2 to the affidavit of Scott Alexander Hudson (Scheme Meeting Online Guide);
(iii) an online portal or website that is accessible by the Email Shareholder and which enables the Email Shareholder to lodge their proxy for the Scheme Meeting and voting instructions online; and
(iv) an online portal or website that is accessible by the Email Shareholder to listen to and participate in the Scheme Meeting online;
(b) the following hard-copy documents to each Crown Shareholder who is not an Email Shareholder (or, in the case of joint holders, to the holder whose name appears first in the Plaintiff’s register) (Postal Shareholder):
(i) an access postcard setting out the URL which provides access to a website from which the Postal Shareholder:
A. can download an electronic copy of the Scheme Booklet (including the notice of meeting which is annexed to the Scheme Booklet) (which contains among other things the proposed Scheme of Arrangement at Annexure 2 and Notice of Scheme Meeting at Annexure 4);
B. can download an electronic copy of a document substantially in the form of the Scheme Meeting Online Guide; and
C. is directed to an online portal or website that is accessible by the Postal Shareholder to listen to and participate in the Scheme Meeting online;
(ii) a personalised hard copy proxy/voting form for the Scheme Meeting (Proxy Form), substantially in the form of the final four pages of Annexure RAL-5 to the Second Levy Affidavit; and
(iii) a prepaid envelope for return of the completed Proxy Form.
3. The documents referred to in Order 2(b) be sent:
(a) in the case of Crown Shareholders whose registered address is within Australia, by prepaid ordinary post addressed to the relevant addresses recorded in the Plaintiff’s register; and
(b) in the case of Crown Shareholders whose registered address is outside Australia, by airmail or international courier service addressed to the relevant addresses recorded in the Plaintiff’s register.
4. Compliance with r 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules) be dispensed with, except in so far as that Rule applies rule 75-15(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth).
5. Subject to these orders, the meeting shall be conducted in accordance with the Plaintiff’s constitution and, unless inconsistent with the Plaintiff’s constitution, Part 2G.2 of the Act.
6. Voting on the resolution to approve the Scheme is to be conducted by way of a poll.
7. Crown Shareholders whose names are recorded in the register of members of the Plaintiff at 7:00pm (AEST, being Melbourne Time) 27 April 2022 will be eligible to vote at the Scheme Meeting.
8. A proxy in respect of the Scheme Meeting will be valid and effective if, and only if, a Proxy Form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions by 10.00am (AEST, being Melbourne time) on 27 April 2022.
9. Dr Zygmunt Edward Switkowski or failing him Ms Sarah Jane Halton, be Chair of the Scheme Meeting.
10. The Chair of the Scheme Meeting shall have the power to adjourn the meeting to such time, date and place as he considers appropriate.
11. The Plaintiff shall have power to postpone the meeting to such time, date and place as it considers appropriate and, in that event, notwithstanding any other part of these orders:
(a) only Crown Shareholders whose names are recorded in the register of members of the Plaintiff at 7:00pm (AEST, being Melbourne Time) on the date which is two calendar days before the date of the postponed meeting will be eligible to vote at the Scheme Meeting;
(b) a proxy in respect of the Scheme Meeting will be valid and effective if a Proxy Form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions at least 48 hours before the time scheduled for the postponed meeting; and
(c) a reference in these orders to the Scheme Meeting is taken to include a reference to the postponed meeting.
12. Compliance with r 3.4 and Form 6 of the Rules is dispensed with.
13. The Plaintiff publish a Notice of Hearing in The Australian newspaper, in substantially the form that appears at Annexure B hereto, not later than 5 days prior to the date fixed for the hearing of any application to approve the Scheme.
14. The further hearing of the Originating Process is adjourned to the Honourable Justice O’Bryan at 2:15pm on Tuesday 3 May 2022 or as soon thereafter as the business of the Court allows.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE A
ANNEXURE B
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.