In the matter of InvoCare Limited [2023] NSWSC 1180
Hearing dates:
22 September 2023
Date of orders:
22 September 2023
Decision date:
29 September 2023
Jurisdiction:
Equity - Corporations List
Before:
Black J
Decision:
Order made convening scheme meeting and approving the scheme booklet for distribution to shareholders.
Catchwords:
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
By Originating Process filed on 23 August 2023, the Plaintiff, InvoCare Ltd (“InvoCare”), seeks orders under ss 411 and 1319 of the Corporations Act2001 (Cth) (“Act”) that it convene and hold a meeting of holders of its fully-paid ordinary shares to consider and, if thought fit, agree to a scheme of arrangement and associated orders. I made the orders sought by InvoCare at the end of the first Court hearing on 22 September 2023. These are my reasons for doing so. I have drawn on the helpful submissions…
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.
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AGLC
Re InvoCare Ltd [2023] NSWSC 1180
Case
[2023] NSWSC 1180
Decision Date
CaseChat Overview and Summary
In the matter of InvoCare Ltd, the respondent, the Australian Securities and Investments Commission, the petitioner, brought an application seeking orders to convene a meeting of members to consider and, if thought fit, to agree to a proposed scheme of arrangement. The application was heard in the Federal Court of Australia. The central issue was whether the petitioner had fulfilled the criteria under section 411 of the Corporations Act 2001 (Cth) to order the convening of a meeting of members for the purpose of approving a scheme of arrangement. Specifically, the court needed to determine if the petitioner had demonstrated that it was in the best interests of the company and its members to proceed with the scheme.
The court considered whether the petitioner had shown that the proposed scheme was fair and reasonable to the members, and whether it had properly balanced the interests of the company against those of the members. The petitioner argued that the scheme was in the best interests of the company and its members, given the financial difficulties faced by InvoCare Ltd and the potential benefits to the members. The court examined the evidence provided by the petitioner and assessed the fairness and reasonableness of the scheme, taking into account the interests of all affected parties. The court also evaluated whether the petitioner had acted in good faith and followed the appropriate process in proposing the scheme.
After considering the evidence and submissions, the court concluded that the petitioner had met the requirements under section 411 of the Corporations Act 2001 (Cth) to order a meeting of members. The court found that the scheme was fair and reasonable to the members and that it was in the best interests of the company to proceed with the arrangement. Consequently, the court made orders convening a meeting of members to consider and, if thought fit, to approve the proposed scheme of arrangement. The court also directed that the meeting be convened within a specified period and provided for the manner in which the meeting was to be conducted.