RE EQUINOX RESOURCES LTD [2004] WASC 114

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 114
Case No:	COR:108/2004	Heard:	10 MAY 2004
Coram:	EM HEENAN J	Delivered:	10/05/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to convene meeting of shareholders to consider proposed scheme granted
Category:	B
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Parties:	EQUINOX RESOURCES LTD (ACN 060 581 777)
Catchwords:	Corporations Scheme of arrangement Proposed reconstruction Leave granted to commence meeting of shareholders No effect on creditors Notice to be given to Treasurer pursuant to Foreign Acquisitions and Takeovers Act 1975 (Clth)
Legislation:	Corporations Act 2001 (Clth), s 411 Foreign Acquisitions and Takeovers Act 1975 (Clth) Rules of the Supreme Court, O 81G r 27
Case References:	Re Amcor Ltd (2000) 34 ACSR 1999 Re Bulong Nickel Pty Ltd (2002) 42 ACSR 52 Re Crusader Ltd (1995) 13 ACLC 1008; 17 ACSR 336 Re Glencore Nickel Pty Ltd (2003) 44 ACSR 210 Re Stockbridge (1993) 11 ACLC 201; 9 ACSR 637 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE EQUINOX RESOURCES LTD [2004] WASC 114 CORAM : EM HEENAN J HEARD : 10 MAY 2004 DELIVERED : 10 MAY 2004 FILE NO/S : COR 108 of 2004 MATTER : Section 411 of the Corporations Act 2001 (Clth) and EQUINOX RESOURCES LTD EX PARTE

EQUINOX RESOURCES LTD (ACN 060 581 777)

Applicant

Catchwords:

Corporations - Scheme of arrangement - Proposed reconstruction - Leave granted to commence meeting of shareholders - No effect on creditors - Notice to be given to Treasurer pursuant to Foreign Acquisitions and Takeovers Act 1975 (Clth)

Legislation:

Corporations Act 2001 (Clth), s 411

Foreign Acquisitions and Takeovers Act 1975 (Clth)
Rules of the Supreme Court, O 81G r 27

Result:

Leave to convene meeting of shareholders to consider proposed scheme granted

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr C D Belyea & Ms M N Campion

Solicitors:

Applicant : Clayton Utz

Case(s) referred to in judgment(s):

Re Amcor Ltd (2000) 34 ACSR 1999
Re Bulong Nickel Pty Ltd (2002) 42 ACSR 52
Re Crusader Ltd (1995) 13 ACLC 1008; 17 ACSR 336
Re Glencore Nickel Pty Ltd (2003) 44 ACSR 210
Re Stockbridge (1993) 11 ACLC 201; 9 ACSR 637

Case(s) also cited:

Nil

(Page 3)

1 EM HEENAN J: Today I have been considering an application by Equinox Resources Ltd, a company incorporated in Australia, made pursuant to the provisions of s 411 of the Corporations Act of the Commonwealth. By that application Equinox Resources Ltd seeks leave to convene a meeting of shareholders for the purpose of considering and, if thought fit agreeing to, a proposed scheme of reconstruction of the company, that meeting to be held in Perth on 15 June 2004.

2 Briefly described, the position is that Equinox Resources Ltd is an Australian company listed on the Australian Stock Exchange carrying on the business of mining exploration and development activities in Australia and abroad, notably with interests…

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 Equinox Resources Ltd

Details

AGLC: Re Equinox Resources Ltd [2004] WASC 114
Case: [2004] WASC 114
Decision Date

CaseChat Overview and Summary

Equinox Resources Ltd applied to the Supreme Court of Western Australia for leave to convene a meeting of its shareholders to consider a proposed scheme of reconstruction of the company. The application was made under section 411 of the Corporations Act 2001 (Cth). The primary legal issue before the Court was whether the proposed scheme of reconstruction would benefit the company and its shareholders and not prejudice the interests of creditors. Equinox Resources Ltd proposed to relocate its corporate domicile from Australia to Canada by implementing a scheme of arrangement under section 411 of the Corporations Act. The scheme involved Equinox Resources Ltd cancelling its share in its subsidiary, Equinox Minerals Ltd, and Equinox Minerals Ltd acquiring all the issued capital of Equinox Resources Ltd. The Court found that the proposed scheme of reconstruction would not affect the assets of Equinox Resources Ltd available for creditors or prejudice the interests of creditors. The Court also found that the scheme would not involve the disposition or dilution of the assets of Equinox Resources Ltd. The Court granted leave for the meeting to be convened and directed that notice of the transaction be given to the Commonwealth Treasurer pursuant to the Foreign Acquisitions and Takeovers Act 1975 (Cth). The Court further directed that the votes of shareholders holding options to acquire shares in Equinox Resources Ltd be recorded separately from the votes of other shareholders. Finally, the Court ordered an abridgment of the times for the advertisement required under O 81G r 27 of the Rules of the Supreme Court.

Orders