Re DuluxGroup Limited (No 2)

[2019] FCA 1225

FEDERAL COURT OF AUSTRALIA

DuluxGroup Limited, in the matter of DuluxGroup Limited (No 2) [2019] FCA 1225

File number(s):

VID 577 of 2019

Judge(s):

O'BRYAN J

Date of judgment:

6 August 2019

Date of publication of reasons:

15 August 2019

Catchwords:

CORPORATIONS – members’ scheme of arrangement –order sought under s 411(4)(b) of the Corporations Act 2001 (Cth) approving scheme of arrangement – employee incentive arrangements – whether additional financial benefit to be received by executive shareholders upon approval of scheme of arrangement is relevant to Court’s decision to approve scheme of arrangement – where scheme of arrangement receives strong support at meeting of members – approval given

Legislation:

Corporations Act 2001 (Cth)

Federal Court (Corporations) Rules 2000

Cases cited:

Re Alabama, New Orleans, Texas and Pacific Junction Railway Company [1891] 1 Ch 213

Re Cashcard Australia Ltd (2004) 48 ACSR 738; [2004] FCA 223

Re Central Pacific Minerals NL [2002] FCA 239

Re Chevron (Sydney) Ltd [1963] VR 249

Re DuluxGroup Limited [2019] FCA 961

Re Medical Australia Ltd (No 2) [2017] FCA 1429

Re Permanent Trustee Co Ltd (2002) 43 ACSR 601

Re Seven Network Ltd (No 3) (2010) 267 ALR 583; 77 ACSR 701

Re Signature Capital Investments Ltd (No 2) [2016] FCA 385

Re Solution 6 Holdings Ltd (2004) 50 ACSR 113

Re Tatts Group Ltd (No 2) [2017] VSC 770

Re Toll Holdings Ltd (No 2) [2015] VSC 236

Date of hearing:

6 August 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

35

Counsel for the Plaintiff:

Mr N Young QC with Mr B Holmes

Solicitor for the Plaintiff:

Gilbert + Tobin

Counsel for Nippon Paint Holdings Co., Ltd:

Mr T Boston QC with Ms X Teo

Solicitor for Nippon Paint Holdings Co., Ltd:

Clayton Utz

Table of Corrections
2 September 2019	Paragraph 33 has been deleted.

ORDERS

VID 577 of 2019

IN THE MATTER OF DULUXGROUP LIMITED ACN 133 404 065

BETWEEN:

DULUXGROUP LIMITED

Plaintiff

AND:

NIPPON PAINT HOLDINGS CO., LTD

Interested Person

JUDGE:	O'BRYAN J
DATE OF ORDER:	6 AUGUST 2019

THE COURT ORDERS THAT:

1.Pursuant to sub-section 411(4)(b) of the Corporations Act 2001 (Cth) (the Act), the scheme of arrangement between the plaintiff, DuluxGroup Limited (DuluxGroup), and Scheme shareholders (as defined in the Scheme Booklet which is Exhibit 1 in this proceeding) (Scheme), which is Annexure B to the orders made 14 June 2019, be approved.

2.Pursuant to sub-section 411(12) of the Act, DuluxGroup be exempt from compliance with sub-section 411(11) of the Act in relation to the Scheme.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. On 14 June 2019, I made orders convening a meeting of the holders of ordinary shares of the plaintiff, DuluxGroup Limited (ACN 133 404 065) (DuluxGroup), pursuant to s 411(1) of the Corporations Act2001 (Cth) (