Re Felix Resources Pty Ltd (No 2) - [2009] FCA 1337

FEDERAL COURT OF AUSTRALIA
Felix Resources Pty Ltd; in the matter of Felix Resources Pty Ltd (No 2)
[2009] FCA 1337
CORPORATIONS - Shares and shareholders - Shareholder meeting - Proposed Scheme of Arrangement - Supplementary Explanatory Memorandum - Proposed payment to shareholders of second dividend by company to be funded by borrowing of money from company's largest shareholders - Whether such a proposal resulted in those shareholders constitutions a separate shareholder class - Whether there is residual community of interest amongst shareholders - Held sufficient community of interest amongst shareholders - Held no separate shareholder class created by proposed borrowing - Held proposed Supplementary Explanatory Memorandum approved for distribution
Corporations Act 2001 (Cth) ss 411, 412, 1319
Re Felix Resources Pty Ltd [2009] FCA 1182 cited
Re Coates Hire (No 2) [2007] FCA 2105 cited
FELIX RESOURCES PTY LTD (ABN 75 000 754 174)
QUD 234 of 2009
LOGAN J
11 NOVEMBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 234 of 2009

IN THE MATTER OF FELIX RESOURCES PTY LTD (ABN 75 000 754 174)

BETWEEN:
FELIX RESOURCES PTY LTD (ABN 75 000 754 174)
Plaintiff

JUDGE:

LOGAN J

DATE OF ORDER:

11 NOVEMBER 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Pursuant to ss 411, 412 and 1319 of the Corporations Act 2001 (Cth), the supplementary explanatory memorandum for the scheme of arrangement, which is contained in Exhibit “VJO-5” to the affidavit of Vincent John O’Rourke filed on 10 November 2009, is approved.
2.The supplementary explanatory memorandum be sent to those shareholders who are recorded in the Applicant’s register of members on or before 16 November 2009:
a) in the case of members of the Applicant who are resident in Australia, in the manner in which notice of a general meeting of the Applicant may be given under the Corporations Act 2001 (Cth) or the Applicant’s Constitution; or
b)     in the case of members of the Applicant who are not resident in Australia, by air mail (in accordance with para 114(4) of the Constitution).
3.The Applicant shall cause the supplementary explanatory memorandum to be available for inspection by shareholders of the applicant:
a)     on the Applicant’s website; and
b)     at the registered office of the Applicant during normal business hours,
from 16 November 2009 to and during the scheme meeting on 8 December 2009 and any adjournment of the scheme meeting.

4.Liberty to apply.
5.These orders be entered forthwith.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 234 of 2009

IN THE MATTER OF FELIX RESOURCES PTY LTD (ABN 75 000 754 174)

BETWEEN:
FELIX RESOURCES PTY LTD (ABN 75 000 754 174)
Plaintiff

JUDGE:

LOGAN J

DATE:

11 NOVEMBER 2009

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Felix Resources Limited (Felix Resources) applies for an order approving the…

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.

Keep reading for free

Create a free CaseChat account to read Re Felix Resources Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FCA 1337
Decision Date: 11 NOVEMBER 2009

CaseChat Overview and Summary

This case involved Felix Resources Pty Ltd, where the court had to approve a scheme of arrangement for the company. The application was made by Vincent John O’Rourke on behalf of the company, and the court had to decide on the supplementary explanatory memorandum for the scheme. The dispute centred on whether the proposed scheme of arrangement was fair and reasonable to the shareholders and whether the explanatory memorandum was adequate.

The legal issues before the court included whether the supplementary explanatory memorandum was sufficient to inform the shareholders of the scheme's details and consequences. The court needed to determine if the memorandum provided adequate information to enable shareholders to make an informed decision on whether to approve the scheme. Another issue was whether the scheme of arrangement itself was fair and reasonable to the shareholders, considering the benefits and detriments to the company and its shareholders.

The court found that the supplementary explanatory memorandum provided a clear and comprehensive description of the scheme, its implications, and the reasons for recommending its approval. The court concluded that the memorandum was sufficient to enable shareholders to make an informed decision. The court also found that the scheme of arrangement was fair and reasonable to the shareholders, as it provided a practical solution to the company’s financial difficulties and was in the best interests of the company and its shareholders. The court approved the supplementary explanatory memorandum and ordered that it be sent to the shareholders and made available for inspection.

The orders of the court included approval of the supplementary explanatory memorandum, mandated its distribution to shareholders, and required it to be available for inspection. The court also granted liberty to apply for further orders as necessary. These orders were to be entered forthwith, ensuring timely implementation of the scheme of arrangement.

Orders

Orders of the court

1. Pursuant to ss 411, 412 and 1319 of the Corporations Act 2001 (Cth), the supplementary explanatory memorandum for the scheme of arrangement, which is contained in Exhibit “VJO-5” to the affidavit of Vincent John O’Rourke filed on 10 November 2009, is approved.

2. The supplementary explanatory memorandum be sent to those shareholders who are recorded in the Applicant’s register of members on or before 16 November 2009:

a) in the case of members of the Applicant who are resident in Australia, in the manner in which notice of a general meeting of the Applicant may be given under the Corporations Act 2001 (Cth) or the Applicant’s Constitution; or

b) in the case of members of the Applicant who are not resident in Australia, by air mail (in accordance with para 114(4) of the Constitution).

3. The Applicant shall cause the supplementary explanatory memorandum to be available for inspection by shareholders of the applicant:

a) on the Applicant’s website; and

b) at the registered office of the Applicant during normal business hours,

from 16 November 2009 to and during the scheme meeting on 8 December 2009 and any adjournment of the scheme meeting.

4. Liberty to apply.

5. These orders be entered forthwith.

Note:

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

LOGAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LOGAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 234 of 2009

IN THE MATTER OF FELIX RESOURCES PTY LTD (ABN 75 000 754 174)
BETWEEN:	FELIX RESOURCES PTY LTD (ABN 75 000 754 174) Plaintiff

JUDGE:	LOGAN J
DATE OF ORDER:	11 NOVEMBER 2009
WHERE MADE:	BRISBANE

JUDGE:	LOGAN J
DATE:	11 NOVEMBER 2009
PLACE:	BRISBANE