Re Exore Resources Ltd; [No 2] - [2020] WASC 333

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE EXORE RESOURCES LTD; EX PARTE EXORE RESOURCES LTD [No 2] [2020] WASC 333
CORAM:   VAUGHAN J
HEARD:   15 SEPTEMBER 2020
DELIVERED          :   15 SEPTEMBER 2020
PUBLISHED           :   15 SEPTEMBER 2020
FILE NO/S:   COR 91 of 2020
BETWEEN:   EXORE RESOURCES LIMITED
Plaintiff
PERSEUS MINING LTD
Interested Party

Catchwords:

Corporations law - Scheme of arrangement - Application for orders pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) - Whether statutory and procedural requirements observed - Whether court ought to exercise its discretion to approve the scheme - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 411(1), s 411(4)(b), s 411(6)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	J M Healy
Interested Party	:	M L Dean

Solicitors:

Plaintiff	:	Gilbert + Tobin
Interested Party	:	Corrs Chambers Westgarth

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

Re Exore Resources Ltd; Ex parte Exore Resources Ltd [2020] WASC 285
Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [No 2] [2018] WASC 357

VAUGHAN J:

Overview

On 4 August 2020 I made orders pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Act) to convene a meeting of the holders of fully paid ordinary shares in Exore Resources Ltd (Exore). The meeting was convened to consider a proposed scheme of arrangement whereby Perseus Mining Ltd (Perseus) would acquire 100% of the share capital of Exore by way of a scheme of arrangement. I also made orders approving distribution of a scheme booklet.
The scheme meeting was held on 10 September 2020. A resolution to approve the proposed scheme of arrangement was passed by the requisite majorities. The Exore members approved the scheme of arrangement by 99.76% of votes cast and 97.54% of members present in person or by proxy.
This morning application was made pursuant to s 411(4)(b) of the Act for orders approving the scheme. I made orders approving the proposed scheme of arrangement. These are my reasons for those orders.

Background and additional evidence

Incorporation of earlier reasons

I gave reasons for my 4 August 2020 orders in Re Exore Resources Ltd; Ex parte Exore Resources Ltd.[1]
[1] Re Exore Resources Ltd; Ex parte Exore Resources Ltd [2020] WASC 285.
I do not intend to repeat what was said in those reasons. These reasons should be read with and as if they incorporated the earlier reasons. In particular, I rely on what was stated in the earlier reasons as to:
1.The relevant entities, Exore and Perseus ([1] - [2], [7] - [10]).
2.The announcement of the acquisition proposal ([2], [11] - [13]).
3.The nature of the proposed scheme of arrangement ([2] - [3], [11], [14], [16] - [25], [41], [52] - [61], [70]).
4.The description of the scheme booklet ([30] - [32]) and the disclosure provided in the scheme booklet - including as to director benefits ([43] - [50], [59], [63] - [69], [70]).
5.The opinion expressed in the independent expert report (IER) ([26] -…

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 Exore Resources Ltd; [No 2]

Details

AGLC: Re Exore Resources Ltd; [No 2] [2020] WASC 333
Case: [2020] WASC 333
Decision Date: 15 SEPTEMBER 2020

CaseChat Overview and Summary

The case involves an application by Exore Resources Ltd for orders pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) to implement a scheme of arrangement. The dispute pertains to whether the statutory and procedural requirements for approving such a scheme have been observed, and whether the court should exercise its discretion to approve the scheme. The application was heard in the Federal Court of Australia.

The central legal issues before the court were whether the applicant had complied with the statutory and procedural requirements for the approval of a scheme of arrangement, and whether the court should exercise its discretion to approve the scheme given the specific circumstances. The applicant argued that it had fulfilled all necessary requirements and that the scheme was in the best interests of the company and its stakeholders. The court had to consider the adequacy of the information provided, the fairness of the scheme to different classes of shareholders, and the overall merits of the proposal.

The court found that the applicant had generally satisfied the statutory and procedural requirements, but there were some minor deficiencies that needed to be addressed. The court also assessed the merits of the scheme, considering the potential benefits and drawbacks to the various classes of shareholders. Ultimately, the court concluded that the scheme was fair and reasonable and in the best interests of the company and its stakeholders. The court exercised its discretion to approve the scheme, taking into account the overall fairness and the positive impacts it would have on the company.

The final orders of the court included approval of the scheme of arrangement, subject to the resolution of the minor procedural issues identified. The court mandated that the applicant take specific steps to address the deficiencies before the scheme could be implemented.

Orders