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Re GARDA Capital

Re GARDA Capital

Case [2019] QSC 279 19 November 2019

Scheme of Arrangement

Unstapling

Constitution Amendments

Implied Terms

Corporate Law & Governance

Trusts & Equity

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SUPREME COURT OF QUEENSLAND

CITATION:

Re GARDA Capital; Re GARDA Funds Management [2019] QSC 279

PARTIES:

BS 10478/19

GARDA CAPITAL LIMITED ACN 095 039 366

(applicant)

BS 10479/19

GARDA FUNDS MANAGEMENT LIMITED ACN 140 857 405

(applicant)

FILE NO/S:

BS No 10478 of 2019
BS No 10479 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 November 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

19 November 2019

JUDGE:

Crow J

ORDER:

BS 10478/19

1. Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement in this proceeding (Scheme), in the form contained in Annexure E of the Scheme Booklet which is exhibit “ICW-15” to the affidavit of Mr Isaac Clifford West affirmed on 10 October 2019, is approved.

2. Pursuant to section 411(12) of the Corporations Act, the Applicant is exempt from complying with section 411(11) of the Corporations Act in relation to the Scheme.

BS 10479/19

1. For the purposes of section 96 of the Trusts Act 1973 (Qld), the Applicant is justified in:

(a) implementing the transfer of all the ordinary units in GARDA Capital Trust ARSN 150 164 720 (GCT) to GARDA Capital Limited ACN 095 039 366 (GCL) as responsible entity for GARDA Diversified Property Fund ARSN 104 391 273 (GDF) (Trust Scheme);

(b) implementing the amendments to the constitution of GCT to give effect to the Trust Scheme (GCT Constitution Amendments);

(c) implementing the unstapling of the ordinary units in GCT from the ordinary shares in GCL;

(d) giving effect to the provisions of the constitution of GCT (as amended by the GCT Constitution Amendments); and

(e) doing all things necessary and taking all steps to put the Trust Scheme into effect.

CATCHWORDS:

CORPORATIONS – ARRANGEMENTS AND RECONSTRUCTIONS – SCHEMES OF ARRANGEMENT OR COMPROMISE – APPROVAL OF SCHEME BY COURT – EXERCISE OF COURT’S DISCRETION – GENERALLY - where applicant seeks an order pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) approving a scheme of arrangement between it and its members – where all requirements for court approval have been established – whether the the proposed scheme of arrangement should be approved

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where applicant seeks an order that it is justified in proceeding on the basis that amending the constitution of its management investment scheme to give effect to the proposed trust scheme would be within its powers of alteration - where s 96 of the Trusts Act 1973 (Qld) requires a written statement of facts – whether affidavits provided in support of the application is sufficient to satisfy ‘a written statement of facts’ – whether judicial advice should be given

Corporations Act 2001 (Cth) s 9, 411, 601GC, s 601FC
Trusts Act 1973 (Qld) s 96

Re Coles Group Ltd (No 2) (2007) 65 ACSR 494
Re World Titanium Resources Ltd [2011] FCA 1480
Re Seven Network Ltd (No 3) 2010) 77 ACSR 701
Re…

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 GARDA Capital

Details

AGLC: Re GARDA Capital; [2019] QSC 279
Case: [2019] QSC 279
Decision Date: 19 November 2019

CaseChat Overview and Summary

In the case of Re GARDA Capital, the applicant, GARDA Capital Limited, sought approval from the court for a proposed scheme of arrangement between itself and its members, as well as an order that it was justified in proceeding on the basis that amending the constitution of its management investment scheme to give effect to the proposed trust scheme would be within its powers of alteration. The application was made pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) and section 96 of the Trusts Act 1973 (Qld). The legal issues that the court had to decide included whether the proposed scheme of arrangement should be approved and whether the applicant was justified in proceeding with the proposed trust scheme.

The court found that all requirements for court approval of the scheme of arrangement had been established, including the fairness and reasonableness of the scheme to the members and creditors of the applicant, as well as the solvency of the applicant. The court also found that the affidavits provided in support of the application were sufficient to satisfy the requirement of a written statement of facts under section 96 of the Trusts Act 1973 (Qld). The court was satisfied that the proposed trust scheme would be within the powers of alteration of the applicant’s constitution and that the applicant was justified in proceeding with the proposed trust scheme.

The court approved the proposed scheme of arrangement and granted the applicant the relief sought in the application. The court found that the proposed scheme of arrangement was fair and reasonable to the members and creditors of the applicant and that the applicant was solvent. The court also found that the applicant was justified in proceeding with the proposed trust scheme and that the affidavits provided in support of the application were sufficient to satisfy the requirement of a written statement of facts under section 96 of the Trusts Act 1973 (Qld). The court approved the proposed trust scheme and granted the applicant the relief sought in the application.

Orders

Orders of the court

BS 10478/19

1. Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement in this proceeding (Scheme), in the form contained in Annexure E of the Scheme Booklet which is exhibit “ICW-15” to the affidavit of Mr Isaac Clifford West affirmed on 10 October 2019, is approved.

2. Pursuant to section 411(12) of the Corporations Act, the Applicant is exempt from complying with section 411(11) of the Corporations Act in relation to the Scheme.

BS 10479/19

1. For the purposes of section 96 of the Trusts Act 1973 (Qld), the Applicant is justified in:

(a) implementing the transfer of all the ordinary units in GARDA Capital Trust ARSN 150 164 720 (GCT) to GARDA Capital Limited ACN 095 039 366 (GCL) as responsible entity for GARDA Diversified Property Fund ARSN 104 391 273 (GDF) (Trust Scheme);

(b) implementing the amendments to the constitution of GCT to give effect to the Trust Scheme (GCT Constitution Amendments);

(d) giving effect to the provisions of the constitution of GCT (as amended by the GCT Constitution Amendments); and

(e) doing all things necessary and taking all steps to put the Trust Scheme into effect.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The orders I make in the BS 10478/19 application are:1.Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement in this proceeding (Scheme), in the form contained in Annexure E of the Scheme Booklet which is exhibit “ICW-15” to the affidavit of Mr Isaac Clifford West affirmed on 10 October 2019, is approved.2.Pursuant to section 411(12) of the Corporations Act, the Applicant is exempt from complying with section 411(11) of the Corporations Act in relation to the Scheme. The orders I make in the BS 10479/19 application are:1.For the purposes of section 96 of the Trusts Act 1973 (Qld), the Applicant is justified in:(a)implementing the transfer of all the ordinary units in GARDA Capital Trust ARSN 150 164 720 (GCT) to GARDA Capital Limited ACN 095 039 366 (GCL) as responsible entity for GARDA Diversified Property Fund ARSN 104 391 273 (GDF) (Trust Scheme);(b) implementing the amendments to the constitution of GCT to give effect to the Trust Scheme (GCT Constitution Amendments); (c)implementing the unstapling of the ordinary units in GCT from the ordinary shares in GCL;(d) giving effect to the provisions of the constitution of GCT (as amended by the GCT Constitution Amendments); and(e) doing all things necessary and taking all steps to put the Trust Scheme into effect.

Citations

AGLC Citation

Re GARDA Capital; [2019] QSC 279

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Bathurst Resources Limited, in the matter of Bathurst Resources Limited (No 2)
[2013] FCA 622 Para 5

…aconda Nickel Holdings Pty Ltd (2003) 44 ACSR 229, 240; Re Equinox Ltd (2004) 49 ACSR 692, 696 per Heenan J; and Re Bathurst Resources Ltd (No 2) [2013] FCA 622, [18] per Barker J.…
World Titanium Resources Ltd, in the matter of World Titanium Resources Ltd
[2011] FCA 1480 Para 13

…f the applicant without the delay, cost, expense or uncertainty associated with a takeover” is a “legitimate commercial interest”[8]. [7] [2011] FCA 1480. [8] [2011] FCA 1480, [35] – [36].…
Re Seven Network Ltd (No 3)
[2010] FCA 400 Para 7

…tion to shareholders; (e) whether minority shareholders would be oppressed by the scheme; and (f) whether the scheme offends public policy. [29] (2010) 77 ACSR 701 [35] – [40]. The Scheme Shareholders acted in good faith and for a proper purpose…
Re Seven Network Ltd
[2010] FCA 220

…oup Ltd (No 2) (2007) 65 ACSR 494 Re World Titanium Resources Ltd [2011] FCA 1480 Re Seven Network Ltd (No 3) 2010) 77 ACSR 701 Re NRMA Ltd (No 2) (2000) 34 ACSR 261 Re Anaconda Nickel Holdings Pty Ltd (2003) 44 ACSR 229 Re Central Pacific Minerals NL [2002] FCA 239 Re Bond Corp Holdings Ltd (1991) 5 ACSR 304…
Re Coles Group Ltd (No 2)
[2007] VSC 523 Para 12

…s entitled to choose a scheme of arrangement over Ch 6 if it wishes. [23]The availability of this choice is well-established by authority…” [6] (2007) 65 ACSR 494.…
Re Equinox Resources Ltd
[2004] WASC 143 Para 5

…target will become a wholly-owned subsidiary of the bidder.[38] [38] Re Anaconda Nickel Holdings Pty Ltd (2003) 44 ACSR 229, 240; Re Equinox Ltd (2004) 49 ACSR 692, 696 per Heenan J; and Re Bathurst Resources Ltd (No 2) [2013] FCA 622, [18] per Barker J.…
Re Anaconda Nickel Holdings Pty Ltd
[2003] WASC 19 Para 12

….[32] [32] Seven Network , 706-707. See also Re NRMA Ltd (No 2) (2000) 34 ACSR 261, 269 per Santow J; Re Anaconda Nickel Holdings Pty Ltd (2003) 44 ACSR 229, 237 per McLure J; Re Central Pacific Minerals NL [2002] FCA 239, [12]-[13] per Emmett J; Coles Group , [8]; Re Bond Corp Holdings Ltd (1991) 5 ACSR 304, 316 per…
Re Permanent Trustee Co Ltd
[2002] NSWSC 1177 Para 2

…their counsel, as set out in relation to a Corporations Act scheme of arrangement in Re Permanent Trustee Company Limited [36] at paragraph [7]. [36](2002) 43 ACSR 601 where Barrett J said: “The fact that the application is ex parte is not without some significance. The absence of any defendant or contradictor sharp…
Re Central Pacific Minerals NL
[2002] FCA 239 Para 12

…) 34 ACSR 261, 269 per Santow J; Re Anaconda Nickel Holdings Pty Ltd (2003) 44 ACSR 229, 237 per McLure J; Re Central Pacific Minerals NL [2002] FCA 239, [12]-[13] per Emmett J; Coles Group , [8]; Re Bond Corp Holdings Ltd (1991) 5 ACSR 304, 316 per Owen J; and Re Hudson Conway Ltd (2000) 33 ACSR 657, 662, 665, 6…
Re NRMA Ltd (No 2)
[2000] NSWSC 408 Para 12

…heme, nor to satisfy itself that no better scheme could have been devised’.[32] [32] Seven Network , 706-707. See also Re NRMA Ltd (No 2) (2000) 34 ACSR 261, 269 per Santow J; Re Anaconda Nickel Holdings Pty Ltd (2003) 44 ACSR 229, 237 per McLure J; Re Central Pacific Minerals NL [2002] FCA 239, [12]-[13] per Emmett…
In re Hudson Conway Ltd
[2000] VSC 21 Para 12

…FCA 239, [12]-[13] per Emmett J; Coles Group , [8]; Re Bond Corp Holdings Ltd (1991) 5 ACSR 304, 316 per Owen J; and Re Hudson Conway Ltd (2000) 33 ACSR 657, 662, 665, 667 per Beach J. Second Judicial Advice…
Re Mirvac Ltd
[1999] NSWSC 457 Para 16

…orations Act . Austin J held in Re Mirvac Limited [33] that the alteration power in section 601GC was very wide and quite unlimited in its terms. [33](1999) 32 ACSR 107.…

Legislation cited in this decision · 2

Corporations Act 2001 (Cth)
411, 601GC, 9 4 mentions (from Para 2)
Trusts Act 1973 (Qld)
96 3 mentions (from Para 16)

CITATION:	Re GARDA Capital; Re GARDA Funds Management [2019] QSC 279
PARTIES:	BS 10478/19 GARDA CAPITAL LIMITED ACN 095 039 366 (applicant) BS 10479/19 GARDA FUNDS MANAGEMENT LIMITED ACN 140 857 405 (applicant)
FILE NO/S:	BS No 10478 of 2019 BS No 10479 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 November 2019
DELIVERED AT:	Rockhampton
HEARING DATE:	19 November 2019
JUDGE:	Crow J
ORDER:	BS 10478/19 1. Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement in this proceeding (Scheme), in the form contained in Annexure E of the Scheme Booklet which is exhibit “ICW-15” to the affidavit of Mr Isaac Clifford West affirmed on 10 October 2019, is approved. *2. Pursuant to section 411(12) of the Corporations Act, the Applicant is exempt from complying with section 411(11) of the Corporations Act* in relation to the Scheme. BS 10479/19 1. For the purposes of section 96 of the Trusts Act 1973 (Qld), the Applicant is justified in: (a) implementing the transfer of all the ordinary units in GARDA Capital Trust ARSN 150 164 720 (GCT) to GARDA Capital Limited ACN 095 039 366 (GCL) as responsible entity for GARDA Diversified Property Fund ARSN 104 391 273 (GDF) (Trust Scheme); (b) implementing the amendments to the constitution of GCT to give effect to the Trust Scheme (GCT Constitution Amendments); (c) implementing the unstapling of the ordinary units in GCT from the ordinary shares in GCL; (d) giving effect to the provisions of the constitution of GCT (as amended by the GCT Constitution Amendments); and (e) doing all things necessary and taking all steps to put the Trust Scheme into effect.**
CATCHWORDS:	CORPORATIONS – ARRANGEMENTS AND RECONSTRUCTIONS – SCHEMES OF ARRANGEMENT OR COMPROMISE – APPROVAL OF SCHEME BY COURT – EXERCISE OF COURT’S DISCRETION – GENERALLY - where applicant seeks an order pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) approving a scheme of arrangement between it and its members – where all requirements for court approval have been established – whether the the proposed scheme of arrangement should be approved EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where applicant seeks an order that it is justified in proceeding on the basis that amending the constitution of its management investment scheme to give effect to the proposed trust scheme would be within its powers of alteration - where s 96 of the Trusts Act 1973 (Qld) requires a written statement of facts – whether affidavits provided in support of the application is sufficient to satisfy ‘a written statement of facts’ – whether judicial advice should be given Corporations Act 2001 (Cth) s 9, 411, 601GC, s 601FC Trusts Act 1973 (Qld) s 96 Re Coles Group Ltd (No 2) (2007) 65 ACSR 494 Re World Titanium Resources Ltd [2011] FCA 1480 Re Seven Network Ltd (No 3) 2010) 77 ACSR 701 Re…