FEDERAL COURT OF AUSTRALIA
David Jones Limited, in the matter of David Jones Limited [2014] FCA 530
Citation: David Jones Limited, in the matter of David Jones Limited [2014] FCA 530 Parties: DAVID JONES LTD (ABN 75 000 074 573) File number: NSD 419 of 2014 Judge: FARRELL J Date of judgment: 22 May 2014 Catchwords: CORPORATIONS – scheme of arrangement – application for the convening of a meeting under s 411 of the Corporations Act 2001 (Cth) – where break fee greater than 1% guidance – advice on foreign law – email notification Legislation: Corporations Act 2001 (Cth)
Corporations Regulations 2001 (Cth)
Federal Court (Corporations) Rules 2000 (Cth)
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Attorneys Act, 1979 (South Africa)
Companies Act, 2008 (South Africa)Date of hearing: 22 May 2014 Date of last submissions: 22 May 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 46 Counsel for the Plaintiff: Mr I Jackman SC with Mr D Thomas Solicitor for the Plaintiff: Herbert Smith Freehills Counsel for Woolworths Mr R Foreman
Holdings Limited:
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 419 of 2014
BETWEEN: DAVID JONES LTD ABN 75 000 074 573
Plaintiff
JUDGE:
FARRELL J
DATE OF ORDER:
22 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Corporations Act):
(a)the Plaintiff, David Jones Limited (David Jones) convene and hold a meeting (Scheme Meeting) of holders of fully paid ordinary shares in the capital of David Jones (Scheme Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement proposed to be made between David Jones and the Scheme Shareholders (Scheme), the terms of which are contained in Annexure C of the scheme booklet (being the document which is Exhibit 1 in this proceeding) (Scheme Booklet);
(b)The Scheme Meeting be held on 30 June 2014 at the Wesley Conference Centre, 220 Pitt Street Sydney, New South Wales 2000, commencing at 10.00 am (Sydney time);
(c)Gordon Cairns or, failing him, Melinda Conrad, be authorised to act as chairperson of the Scheme Meeting;
(d)the chairperson of the Scheme Meeting has the power to adjourn the Scheme Meeting in his or her absolute discretion for such time and to such date as he or she considers appropriate;
(e)at the Scheme Meeting, the Scheme Shareholders present and entitled to vote, in person or by proxy, corporate representative (if applicable) or an attorney under power, shall constitute a quorum;
(f)at the Scheme Meeting, each Scheme Shareholder present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of David Jones that the Scheme Shareholder is registered as holding at 7.00pm on 28 June 2014;
(g)at the Scheme Meeting, the resolution to approve the Scheme will be decided by way of…
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- AGLC
- Re David Jones Limited [2014] FCA 530
- Case
- [2014] FCA 530
- Decision Date
CaseChat Overview and Summary
The court considered several factors in making its decision. Firstly, it assessed whether the proposed scheme of arrangement complied with the disclosure requirements set out in the Corporations Act. The court examined the scheme booklet and related documents to ensure that shareholders received all necessary information to make an informed decision. The court also considered the adequacy of the proposed meeting arrangements, including the venue, time, and voting procedures. The court examined whether the notice and proxy processes were sufficient to ensure that shareholders could participate effectively in the meeting. The court further considered the foreign law advice provided in relation to the break fee and the appropriateness of the email notification to shareholders with electronic addresses.
In granting the application, the court found that David Jones Limited had fulfilled its obligations under the Corporations Act and that the proposed scheme of arrangement was fair and reasonable. The court was satisfied that the scheme booklet provided adequate disclosure to shareholders, and the meeting arrangements were appropriate. The court also accepted that the email notification to shareholders with electronic addresses was a reasonable method of communication under the circumstances. The court concluded that convening the meeting was in the best interests of the company and its shareholders.
The court issued several orders pursuant to the application. These included convening the meeting of shareholders on 30 June 2014, approving the scheme booklet for distribution to shareholders, and directing the dispatch of notices and proxy forms to shareholders. The court also made orders regarding the publication of a notice of hearing in The Australian newspaper and provided relief from certain procedural rules. The proceedings were stood over for further hearing on 2 July 2014 to consider the approval of the scheme.
Orders
Orders of the court
1. Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Corporations Act):
(a) the Plaintiff, David Jones Limited (David Jones) convene and hold a meeting (Scheme Meeting) of holders of fully paid ordinary shares in the capital of David Jones (Scheme Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement proposed to be made between David Jones and the Scheme Shareholders (Scheme), the terms of which are contained in Annexure C of the scheme booklet (being the document which is Exhibit 1 in this proceeding) (Scheme Booklet);
(b) The Scheme Meeting be held on 30 June 2014 at the Wesley Conference Centre, 220 Pitt Street Sydney, New South Wales 2000, commencing at 10.00 am (Sydney time);
(c) Gordon Cairns or, failing him, Melinda Conrad, be authorised to act as chairperson of the Scheme Meeting;
(d) the chairperson of the Scheme Meeting has the power to adjourn the Scheme Meeting in his or her absolute discretion for such time and to such date as he or she considers appropriate;
(e) at the Scheme Meeting, the Scheme Shareholders present and entitled to vote, in person or by proxy, corporate representative (if applicable) or an attorney under power, shall constitute a quorum;
(f) at the Scheme Meeting, each Scheme Shareholder present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of David Jones that the Scheme Shareholder is registered as holding at 7.00pm on 28 June 2014;
(g) at the Scheme Meeting, the resolution to approve the Scheme will be decided by way of a poll;
(h) the Scheme Booklet be approved for distribution to Scheme Shareholders (which Scheme Booklet be and is hereby approved for the purposes only of subsection 411(1)) of the Act.
2. Pursuant to section 1319 of the Act, on or before 30 May 2014 there be dispatched to:
(a) each Scheme Shareholder who has nominated an electronic address for the purposes of receiving notices of meeting and proxy forms from David Jones (via the on-line “Investor Centre” maintained by Computershare), at such address, an email substantially in the form of the document behind tab 7 of Exhibit BS-1, including URL links to the Scheme Booklet and a proxy form in respect of the Scheme Meeting substantially in the form of the document behind tab 8 of Exhibit BS-1 (Proxy Form); and
(b) each other Scheme Shareholder, by hand at, or prepaid post or courier to, the address of that Scheme Shareholder as set out in the register of members of David Jones, a copy of the Scheme Booklet and Proxy Form.
3. The time by which proxy forms must be returned is 10.00am on 28 June 2014.
4. Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (the Rules) shall not apply to the Scheme Meeting, except in so far as that Rule applies regulation 5.6.13 of the Corporations Regulations 2001 (Cth).
5. On or before Wednesday 28 June 2014, David Jones publish a Notice of Hearing substantially in the form of Annexure “A” hereto in The Australian newspaper and David Jones is relieved from compliance with Rule 3.4 of the Rules to the extent necessary.
6. The proceedings be stood over to 10.15am on 2 July 2014 before Justice Farrell for the hearing of any application to approve the Scheme.
7. There be liberty to apply.
8. These orders be entered forthwith.
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
Ratio Decidendi
Legal Principle Established
Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Corporations Act):(a)the Plaintiff, David Jones Limited (David Jones) convene and hold a meeting (Scheme Meeting) of holders of fully paid ordinary shares in the capital of David Jones (Scheme Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement proposed to be made between David Jones and the Scheme Shareholders (Scheme), the terms of which are contained in Annexure C of the scheme booklet (being the document which is Exhibit 1 in this proceeding) (Scheme Booklet);(b)The Scheme Meeting be held on 30 June 2014 at the Wesley Conference Centre, 220 Pitt Street Sydney, New South Wales 2000, commencing at 10.00 am (Sydney time);(c)Gordon Cairns or, failing him, Melinda Conrad, be authorised to act as chairperson of the Scheme Meeting;(d)the chairperson of the Scheme Meeting has the power to adjourn the Scheme Meeting in his or her absolute discretion for such time and to such date as he or she considers appropriate;(e)at the Scheme Meeting, the Scheme Shareholders present and entitled to vote, in person or by proxy, corporate representative (if applicable) or an attorney under power, shall constitute a quorum;(f)at the Scheme Meeting, each Scheme Shareholder present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of David Jones that the Scheme Shareholder is registered as holding at 7.00pm on 28 June 2014;(g)at the Scheme Meeting, the resolution to approve the Scheme will be decided by way of a poll;(h)the Scheme Booklet be approved for distribution to Scheme Shareholders (which Scheme Booklet be and is hereby approved for the purposes only of subsection 411(1)) of the Act. Pursuant to section 1319 of the Act, on or before 30 May 2014 there be dispatched to:(a)each Scheme Shareholder who has nominated an electronic address for the purposes of receiving notices of meeting and proxy forms from David Jones (via the on-line “Investor Centre” maintained by Computershare), at such address, an email substantially in the form of the document behind tab 7 of Exhibit BS-1, including URL links to the Scheme Booklet and a proxy form in respect of the Scheme Meeting substantially in the form of the document behind tab 8 of Exhibit BS-1 (Proxy Form); and(b)each other Scheme Shareholder, by hand at, or prepaid post or courier to, the address of that Scheme Shareholder as set out in the register of members of David Jones, a copy of the Scheme Booklet and Proxy Form. The time by which proxy forms must be returned is 10.00am on 28 June 2014. Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (the Rules) shall not apply to the Scheme Meeting, except in so far as that Rule applies regulation 5.6.13 of the Corporations Regulations 2001 (Cth). On or before Wednesday 28 June 2014, David Jones publish a Notice of Hearing substantially in the form of Annexure “A” hereto in The Australian newspaper and David Jones is relieved from compliance with Rule 3.4 of the Rules to the extent necessary.