Re ITX Group Pty Ltd - [2010] FCA 1241

FEDERAL COURT OF AUSTRALIA
ITX Group Pty Limited, in the matter of ITX Group Pty Limited [2010] FCA 1241

Citation: ITX Group Pty Limited, in the matter of ITX Group Pty Limited [2010] FCA 1241

Parties: ITX GROUP PTY LIMITED ACN 107 656 833

File number: NSD 1345 of 2010

Judge: EMMETT J

Date of judgment: 21 October 2010

Legislation: Corporations Act 2001 (Cth) ss 411 & 412

Date of hearing: 20 October 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 29

Counsel for the Applicant: M. Oakes SC

Solicitor for the Applicant: Norton Rose

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1345 of 2010

IN THE MATTER OF ITX GROUP PTY LIMITED ACN 107 656 833

ITX GROUP PTY LIMITED ACN 107 656 833

JUDGE:

EMMETT J

DATE OF ORDER:

20 OCTOBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act):
(a)The plaintiff, itX Group Limited (itX) convene a meeting (the Scheme Meeting) of the ordinary shareholders in itX (the itX Shareholders), for the purpose of considering and, if thought fit, approving a scheme of arrangement (with or without modification) proposed to be made between itX and itX Shareholders, the terms of which are contained in section 3 of the scheme booklet which is Exhibit 1 in this proceeding (the Scheme Booklet);
(b)The Scheme Meeting be held on Monday, 29 November 2010 at the later of 12:00 pm and the conclusion or adjournment of the Annual General Meeting in the Adelaide Room at Level 4, Sofitel Wentworth, Phillip Street, Sydney in the state of New South Wales;
(c)Dinshaw Katrak or failing him Laurence Sellers, act as Chairman of the Scheme Meeting;
(d)The Chairman have the power to adjourn the Scheme Meeting for such time as the Chairman considers appropriate; and
(e)The Explanatory Statement compromising the Scheme Booklet be approved for distribution to itX Shareholders.

2.Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Scheme Meeting, except in so far as that rule applies Regulation 5.6.13 of the Corporations Regulations 2001 (Cth).
3.Notice of the hearing of any application for an order approving the scheme be published once in “The Australian” newspaper by an advertisement substantially in the form of “Annexure A” to these orders, such advertisement to be published on or before 23 November 2010.
4.The proceeding be adjourned to Thursday, 2 December 2010 at 2:15 pm for hearing of any application to approve the scheme.

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 Federal Law Search on the Court’s website.

ANNEXURE “A”
itX GROUP LIMITED
Notice of Hearing to Approve Arrangement
TO all creditors and members of itX GROUP LIMITED
ACN 145 620 293 (itX)
TAKE NOTICE that at…

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 ITX Group Pty Ltd

Details

AGLC: Re ITX Group Pty Ltd [2010] FCA 1241
Case: [2010] FCA 1241
Decision Date

CaseChat Overview and Summary

ITX Group Limited (the Company) applied to the Federal Court of Australia for an order convening a meeting of its shareholders to consider a scheme whereby its shareholders would transfer their shares to Avnet Technology Solutions Australia Pty Ltd (Avnet). The application was heard by Emmett J, who determined that the meeting should be convened. The primary issue for the Court was whether the scheme as proposed was of such a nature and cast in such terms that, if it received the statutory majority at the meeting of members, the Court would be likely to approve it on the hearing of an application for approval that was unopposed. Emmett J found that the scheme was in the best interests of the Company's shareholders, and that the disclosure made was adequate and intelligible. The scheme, which values the Company at approximately $77,500,000, proposes that shareholders will receive a cash consideration of $1.55 for each fully paid share, less the cash amount of any special dividend of up to 20 cents that may be paid by the Company prior to the acquisition. The Court was satisfied that the scheme booklet, which includes the explanatory statement, a copy of WHK Horwath’s report, the texts of the scheme, the Scheme Implementation Agreement and the deed poll, sets out adequately the disclosures that should be made in the circumstances. The Court also found that the provisions relating to the exclusivity of the scheme and the break fee were reasonable and in the best interests of the Company's shareholders. The Court ordered that a meeting of the shareholders of the Company be convened on 29 November 2010 for the purpose of considering, and if thought fit, agreeing to the proposed scheme of arrangement. The explanatory statement compromising the scheme booklet was also approved for distribution to the Company's shareholders.

Orders