FEDERAL COURT OF AUSTRALIA
Integra Mining Limited, in the matter of Integra Mining Limited [2012]
FCA 1414
Citation: Integra Mining Limited, in the matter of Integra Mining Limited [2012] FCA 1414 Parties: INTEGRA MINING LIMITED ABN 54 093 278 436 File number: WAD 310 of 2012 Judge: MCKERRACHER J Date of judgment: 12 December 2012 Catchwords: CORPORATIONS – scheme of arrangement – application pursuant to s 411(1) that a company convene a meeting of members Legislation: Corporations Act 2001 (Cth) s 411(1) Cases cited: Re ACM Gold Ltd (1992) 34 FCR 530
Re CSR Ltd (2010) 265 ALR 703
Re Dorman Long & Co Ltd, South Durham Steel & Iron Co Ltd [1934] Ch 635
Re Foundation Healthcare Ltd (2002) 42 ACSR 252
Re Hills Motorway Ltd (2002) 43 ACSR 101
Re International Goldfields Ltd (2003) 21 ACLC 1199Re MAC Services Group Ltd (2010) 80 ACSR 390
Re Macquarie Private Capital A Ltd [2008] NSWSC 323Re NRMA Insurance Ltd (No 1) (2000) 156 FLR 349
Re Orica Ltd [2010] VSC 231
Re Ranger Minerals Ltd (2002) 42 ACSR 582
Re Seven Network Ltd [2010] FCA 220
Re Sonodyne International Ltd (1994) 15 ACSR 494Date of hearing: 15 November 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 39 Counsel for the Plaintiff: JA Thomson Solicitor for the Plaintiff: Ashurst Australia Counsel for Silver Lake Resources Ltd: P Jooste QC
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 310 of 2012
IN THE MATTER OF INTEGRA MINING LIMITED ABN 54 093 278 436
INTEGRA MINING LIMITED ABN 54 093 278 436
Plaintiff
JUDGE:
MCKERRACHER J
DATE OF ORDER:
15 NOVEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The Plaintiff convene a meeting of holders of fully paid ordinary shares in the capital of the Plaintiff ("Shareholders") to be held in Perth, Western Australia on 19 December 2012 ("Scheme Meeting") for the purpose of the Shareholders considering and, if thought fit, approving, with or without modifications, the scheme of arrangement proposed pursuant to Part 5.1 of the Corporations Act 2001 (Cth) (the "Act") between the Plaintiff and its Shareholders ("Scheme") which is attached hereto and marked Annexure "A".
2.The Court approves, for the purposes of section 412(1)(a) of the Act, an explanatory statement constituted by the scheme booklet which forms annexure "CBP-1" to the Affidavit of Chadwick Byron Poletti sworn 14 November 2012 ("Scheme Booklet").
3.Subject to registration of the Scheme Booklet with the Australian Securities and Investments Commission ("ASIC") pursuant to section 412(6) of the Act, the Plaintiff is to despatch the Scheme Booklet to the Shareholders who appear on the register of members as at 5pm on 15 November 2012 by ordinary pre-paid post (or by airmail to overseas Shareholders) on or before 19 November 2012.
4. The Court directs, subject to these orders, that the Scheme Meeting is to be:
(a)held at the Pan…
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- Re Integra Mining Limited [2012] FCA 1414
- Case
- [2012] FCA 1414
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CaseChat Overview and Summary
The Court found that ASIC had been notified of the hearing and had a reasonable opportunity to examine the scheme and make submissions, fulfilling the requirements of section 411(2)(a) and (b) of the Corporations Act. Furthermore, the Court concluded that the explanatory statement provided to members, the Scheme Booklet, was sufficient to meet the disclosure obligations under section 411(3) of the Act. The Scheme Booklet was prepared in accordance with relevant ASIC regulatory guides and Corporations Regulations, ensuring that members were provided with all main facts necessary to exercise their judgment on the proposed scheme. As a result, the Court was satisfied that all conditions for convening the meeting were met.
The Court made the orders sought by the applicant, convening a meeting of members to consider and, if thought fit, approve the scheme of arrangement. The orders included specific directions for the conduct of the meeting, the appointment of a chairperson, and the requirements for the explanatory statement and notice to ASIC. The date for dispatching the Scheme Booklet to members was deferred due to logistical issues faced by the company. These comprehensive orders ensured that the process for member approval of the scheme proceeded in accordance with the statutory requirements.
Orders
Orders of the court
1. The Plaintiff convene a meeting of holders of fully paid ordinary shares in the capital of the Plaintiff ("Shareholders") to be held in Perth, Western Australia on 19 December 2012 ("Scheme Meeting") for the purpose of the Shareholders considering and, if thought fit, approving, with or without modifications, the scheme of arrangement proposed pursuant to Part 5.1 of the Corporations Act 2001 (Cth) (the "Act") between the Plaintiff and its Shareholders ("Scheme") which is attached hereto and marked Annexure "A".
2. The Court approves, for the purposes of section 412(1)(a) of the Act, an explanatory statement constituted by the scheme booklet which forms annexure "CBP-1" to the Affidavit of Chadwick Byron Poletti sworn 14 November 2012 ("Scheme Booklet").
3. Subject to registration of the Scheme Booklet with the Australian Securities and Investments Commission ("ASIC") pursuant to section 412(6) of the Act, the Plaintiff is to despatch the Scheme Booklet to the Shareholders who appear on the register of members as at 5pm on 15 November 2012 by ordinary pre-paid post (or by airmail to overseas Shareholders) on or before 19 November 2012.
4. The Court directs, subject to these orders, that the Scheme Meeting is to be:
(a) held at the Pan Pacific Perth, 207 Adelaide Terrace, Perth, Western Australia at 10.00am (Perth time) on Wednesday 19 December 2012;
(b) convened, held and conducted in accordance with the provisions of Part 2G.2 of the Act that apply to members of a company and the provisions of the Plaintiff’s constitution that are not inconsistent therewith and that apply to meetings of members;
(c) convened, held and conducted pursuant to section 1319 of the Act, on the basis that Corporations Regulations 5.6.12 and 5.6.14 to 5.6.36A do not apply to the meeting; and
(d) convened using the notice of meeting in the form or to the effect of the notice contained in Annexure D of the Scheme Booklet.
5. Mr John Daniel Fitzgerald or, failing him, Mr William Forrest Plyley is to be appointed to act as chairperson of the Scheme Meeting ("Chairperson") and report the result of the Scheme Meeting to this Court.
6. The Chairperson can adjourn the Scheme Meeting in his discretion.
7. Two Shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Scheme Meeting.
8. The matter be relisted on 21 December 2012 for such application as appropriate following the Scheme Meeting, including for approval of the Scheme pursuant to section 411(4)(b) of the Act.
9. The Plaintiff is to give notice of the hearing of any application pursuant to section 411(4)(b) of the Act for orders from the Court approving the Scheme by publishing an advertisement in the public notices column of “The Australian” and “The West Australian” substantially in the form of Annexure "B” to this order, such advertisement to be published at least five days before any date allocated for the hearing and the Plaintiff otherwise be exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000.
10. These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The receipt of such consideration does not result in the member receiving a right or benefit under the Scheme that is different to other members. Such consideration will be received by the member not as member, but as holder of and in exchange for Options and/or Performance Rights. The terms of the transferred Options and Performance Rights have been calculated by reference to the Scheme Consideration and the Black Scholes option valuation methodology. In these circumstances, the members in question will not receive any benefit that could be regarded as a benefit or right that is additional to or different from the benefits and rights the other members will receive under the Scheme. ASIC consideration The jurisdiction of the Court to make an order convening meetings under s 411(1) CA is conditional upon the matters set out in s 411(2). Section 411(2) CA requires that the Court be satisfied of two matters before making an order. First, that ASIC has been given 14 days notice of the hearing, or such lesser period of notice as the Court or ASIC permits: s 411(2)(a) CA. Second, that ASIC has had a reasonable opportunity to examine the terms of the scheme and the draft explanatory statement and to make submissions to the Court: s 411(2)(b) CA. The Scheme Booklet was first lodged with ASIC on 23 October 2012. On 29 October 2012 ASIC was given notice of the hearing listed for 15 November 2012. ASIC advised that it did not wish to be heard on this application. Draft Explanatory Statement The complete Scheme Booklet comprises the body of the text, a summary of the terms of the Implementation Agreement, the deed poll, the scheme of arrangement, the notice of scheme meeting, a list of Integra's ASX announcements from 14 September 2012, a list of Silver Lake's ASX announcements from 31 August 2012, the independent expert's report, which appends the independent technical specialist's report and the investigating accountant's report. The emphasis is on proper disclosure: Re Seven Network Ltd [2010] FCA 220 (at [8]). The explanatory statement must provide proper disclosure as required in s 411(3) CA. It must essentially set out ‘all the main facts as will enable shareholders to exercise their judgment on the proposed scheme’: Re Dorman Long & Co Ltd, South Durham Steel & Iron Co Ltd [1934] Ch 635 (at 665-666) per Maugham J; applied by Santow J in Re NRMA Ltd (No 1) (at 354) and French J in Re Foundation Healthcare Ltd (at 263). The Scheme Booklet prepared by Integra in relation to the Scheme has been drafted to satisfy the disclosure requirements prescribed in:·ASIC Regulatory Guides 60, 111 and 112; and·s 411(3) and s 412 CA and Sch 8 of the Corporations Regulations. Regulation 5.1.01 of the Corporations Regulations prescribes the information for the explanatory statement as required by s 411(3)(b) and s 412(1)(a)(ii) CA. In respect of a scheme between a Pt 5.1 body and its members, or a class of its members, reg 5.1.01(1)(b) requires the explanatory statement to state the matters set out and have annexed to it the reports and copies of documents mentioned in Pt 3 of Sch 8 to the Corporations Regulations.