FEDERAL COURT OF AUSTRALIA
Investa Properties Limited, in the matter of Investa
Properties Limited [2007] FCA 1104
CORPORATIONS – scheme of arrangement – application for order under s 411(1) of Corporations Act 2001 (Cth) that company convene meeting of members to consider proposed scheme of arrangement – term of scheme that “to the extent permitted by law” shares will vest in acquiring company free of interests of third parties – discussion of such a term.
Held: order made that company convene meeting to consider scheme incorporating the term.Corporations Act 2001 (Cth) s 411
APN News & Media Limited (2007) 25 ACLC 784 referred to
Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 cited
Borland’s Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 cited
Commissioners of Inland Revenue v Crossman [1937] AC 26 cited
Re Kaz Group Ltd [2004] FCA 738 cited
Re SFE Corporation Ltd (2006) 59 ACSR 82 cited
Re Tempo Services Ltd (2005) 53 ACSR 526 citedWebCentral Group Limited (No 2) (2006) 58 ACSR 742 discussed
Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow and Lehane’s Equity Doctrines and Remedies (Butterworths LexisNexis, 2002)
IN THE MATTER OF INVESTA PROPERTIES LIMITED
(ABN 54 084 407 241)NSD 1316 of 2007
LINDGREN J
18 JULY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1316 OF 2007
IN THE MATTER OF INVESTA PROPERTIES LIMITED (ABN 54 084 407 241)
INVESTA PROPERTIES LIMITED (ABN 54 084 407 241)
Plaintiff
JUDGE:
LINDGREN J
DATE OF ORDER:
18 JULY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (the Act), Investa Properties Limited (ABN 54 084 407 241) (Investa Co) convene a meeting of all holders of shares in Investa Co (Share Scheme Meeting) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement (Share Scheme), being the scheme substantially in the form of the draft, a copy of which is at Attachment C of Exhibit “MXS-D”.
2.The Share Scheme Meeting be held at 10 am on 22 August 2007 at Sheraton Four Points, Sydney.
3.Pursuant to section 411(1) of the Act, the explanatory statement for the Share Scheme, in a form substantially equivalent to the form that is Exhibit “MXS-D”, is approved subject to the following modifications:
(a)the insertion of the figure “$2.69” at clause 9.10 of the Scheme Booklet and the consequential amendment of the graph that appears in that clause;
(b)the amendment of the tables that appear at clauses 9.12 and 9.18 to include updated information concerning the holdings of substantial holders of Investa securities;
(c)deletion of the words “without prejudice to any rights of any third parties as against Scheme Participants” in clause 7.3(b) of Attachment C; and
(d)in the event that formal confirmation of the relevant relief is…
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- AGLC
- Re Investa Properties Ltd [2007] FCA 1104
- Case
- [2007] FCA 1104
- Decision Date
CaseChat Overview and Summary
The court examined the explanatory statement to ensure it met the requirements of section 412 of the Corporations Act 2001 (Cth). The court identified several modifications necessary to the explanatory statement, such as updating financial figures and correcting certain clauses. The court concluded that the explanatory statement should be approved with the specified modifications, allowing the meeting to proceed. The court also confirmed the appointment of Steven Crane as the chairman of the Share Scheme Meeting, with John Messenger as an alternate if Crane was unable to fulfil the role.
In light of the findings, the court ordered that Investa Properties Limited convene a meeting of shareholders to consider the proposed scheme. The meeting was set for 22 August 2007, with the explanatory statement approved subject to the noted modifications. The court further directed Investa to advertise the meeting in The Australian Newspaper and scheduled the proceedings to be heard by Justice Gyles on 27 August 2007. The final order allowed the shareholders to review and vote on the scheme, ensuring compliance with the necessary statutory requirements.
Orders
Orders of the court
1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (the Act), Investa Properties Limited (ABN 54 084 407 241) (Investa Co) convene a meeting of all holders of shares in Investa Co (Share Scheme Meeting) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement (Share Scheme), being the scheme substantially in the form of the draft, a copy of which is at Attachment C of Exhibit “MXS-D”.
2. The Share Scheme Meeting be held at 10 am on 22 August 2007 at Sheraton Four Points, Sydney.
3. Pursuant to section 411(1) of the Act, the explanatory statement for the Share Scheme, in a form substantially equivalent to the form that is Exhibit “MXS-D”, is approved subject to the following modifications:
(a) the insertion of the figure “$2.69” at clause 9.10 of the Scheme Booklet and the consequential amendment of the graph that appears in that clause;
(b) the amendment of the tables that appear at clauses 9.12 and 9.18 to include updated information concerning the holdings of substantial holders of Investa securities;
(c) deletion of the words “without prejudice to any rights of any third parties as against Scheme Participants” in clause 7.3(b) of Attachment C; and
(d) in the event that formal confirmation of the relevant relief is not received from ASIC prior to registration of the explanatory statement in accordance with section 412(6) of the Act, the insertion of the words “in principle”:
(i) after the words “An ASIC modification in respect of this requirement has been obtained” in the fifth paragraph of section 7.2(b) and
(ii) after the words “ASIC has granted Investa a modification” in the second paragraph of 9.17(a).
4. The Chairman of the Share Scheme Meeting be Steven Crane, or in his absence John Messenger.
5. Investa Co place an advertisement in The Australian Newspaper, in a form substantially equivalent to the form that appears at Exhibit “MXS-H” not later than five days prior to the date fixed for the hearing of any application to approve the Share Scheme.
6. The proceedings be stood over to 10.15 am on 27 August 2007 before Justice Gyles for the hearing of any application to approve the Share Scheme.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: LINDGREN J
On 18 July 2007 I made an order pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act), that the plaintiff, Investa Properties Limited (Investa), convene a meeting of the holders of the shares in Investa (Share Scheme Meeting) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement (Share Scheme). I also made an order pursuant to s 411(1) of the Act approving the explanatory statement required by s 412(1)(a) to accompany the notices of the Share Scheme Meeting. The following are the reasons why I made those orders.CONSIDERATIONGeneral The “Investa Group” is an Australian diversified property group listed on the Australian Securities Exchange (ASX) within the ASX “Top 100”. As explained below, the Investa Group comprises Investa itself and the Investa Property Trust, a listed unit trust of which Investa is the responsible entity. According to the evidence, based on the closing price on 30 May 2007, being the day immediately prior to the date of the Implementation Agreement referred to below, the Investa Group had a market capitalisation of approximately $4.1 billion. As at 31 December 2006, the Investa Group had assets under management of approximately $7 billion, which included direct investments, managed funds and development assets. The Investa Group’s business includes a listed office portfolio, an external funds management business, a residential development business, and a commercial development business. On 31 May 2007 Investa entered into an Implementation Agreement with Post Bidco Pty Limited (Morgan Stanley Bidco), an instrument of Morgan Stanley Real Estate (MSRE). MSRE is a division of the global financial services firm listed on the New York Stock Exchange, Morgan Stanley. MSRE comprises three major global businesses, being investing, banking and lending. MSRE manages approximately US$55.6 billion in real estate assets on behalf of its clients. By the Implementation Agreement, Investa and Morgan Stanley agreed to implement a scheme by which, subject to security holders’ agreement and Court approval, Morgan Stanley Bidco or a related body corporate of Morgan Stanley would acquire all of the shares in Investa (the Shares) and units in the Investa Property Trust that are “stapled” to the Shares (the Units) (together, the Securities). Morgan Stanley’s offer was $3.00 per Security plus a dividend or distribution of eight cents per Security. The dividend or distribution is payable on 22 August 2007 and is in respect of the six month period ended 30 June 2007. The fact that the Shares and Units are stapled indicates that neither a Share nor a Unit may be disposed of otherwise than with its accompanying Unit or Share respectively. Under the constitution of Investa, Shares may not be issued or transferred without an issue or transfer of the Units to which they are stapled. The constitution also provides that if there is a transfer of Shares without a transfer of the stapled Units, Investa is authorised to act as the transferor’s agent for the purpose of transferring the stapled Units to the transferee (cl 5.2(c)). The Trust Deed dated 15 July 1977 constituting the Investa Property Trust contains reciprocal provisions (cl 19.3(a)).