Re Kalgoorlie Lake View Pty Ltd - [2005] FCA 1440

FEDERAL COURT OF AUSTRALIA
In the Matter of Kalgoorlie Lake View Proprietary Ltd
[2005] FCA 1440
CORPORATIONS – scheme of arrangement – approval
CORPORATIONS – scheme of arrangement approved – exemption sought from compliance with s 411(11) of Corporations Act 2001 (Cth)
KALGOORLIE LAKE VIEW PROPRIETARY LTD and MACAPA PTY LTD and NORKAL PTY LTD and NEWMONT GRPL PTY LTD and NORTH KALURLI MINES PTY LTD
SAD 119 of 2005
MANSFIELD J
26 SEPTEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 119 OF 2005

BETWEEN:

KALGOORLIE LAKE VIEW PROPRIETARY LTD
FIRST PLAINTIFF

MACAPA PTY LTD
SECOND PLAINTIFF

NORKAL PTY LTD
THIRD PLAINTIFF

NEWMONT GRPL PTY LTD
FOURTH PLAINTIFF

NORTH KALGURLI MINES PTY LTD
FIFTH PLAINTIFF

JUDGE:

MANSFIELD J

DATE OF ORDER:

26 SEPTEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.Pursuant to section 411(6) of the Act, the scheme of arrangement ("the Scheme"), a copy of which is Schedule A to this order proposed between the plaintiffs and their respective members be approved.
2.Orders 3 to 8 below be made pursuant to section 413 of the Act for the purpose of facilitating the Scheme and are made subject to, and in accordance with, the terms of the Scheme.
3.Pursuant to section 413(1)(a) of the Act, the whole of the undertakings, property, and assets of Macapa, Norkal, GRPL and NKM shall be transferred to, and vested in, KLV without any further act or deed.
4.Pursuant to section 413(1)(a) of the Act, all liabilities, obligations and duties of Macapa, Norkal, GRPL and NKM, other than any Excluded Tax Liabilities, shall be transferred to and become the liabilities, obligations and duties of KLV, without any further act or deed.
5.Pursuant to section 413(1)(c) of the Act, all legal proceedings by or against each of Macapa, Norkal, GRPL and NKM shall be deemed to be continued by or against KLV (as the case may be) without any further act or deed.
6.Pursuant to section 413(1)(g) where, before the Effective Date, documentary or other evidence would have been admissible for or against the interests of Macapa, Norkal, GRPL and NKM, that evidence is admissible, on or at any time after that day, for or against the interests of KLV.
7.Pursuant to section 413(1)(g) of the Act, KLV will be taken, without any further act or deed to have:
7.1credited to appropriate reserve accounts (including a reconstruction reserve account) the sums reflecting retained earnings (or accumulated losses), capital profits/asset revaluations and other reserves respectively in Macapa, Norkal, GRPL and NKM as at the Effective Date so that these amounts retain the same characteristics in KLV as previously existed in Macapa, Norkal, GRPL and NKM respectively; and
7.2transferred from retained earnings to share capital, without the issue of any share, an amount equivalent to the gain, if any, arising from the difference between the net value of assets acquired from Macapa, Norkal, GRPL and NKM as a result of the scheme of arrangement and the carrying value of…

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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Details

Case: [2005] FCA 1440
Decision Date: 26 SEPTEMBER 2005

CaseChat Overview and Summary

The matter before the Court involved an application to approve a scheme of arrangement proposed between several plaintiffs and their respective members. The applicants sought approval of the scheme under section 411 of the Corporations Act 2001 (Cth) and requested an exemption from the compliance with section 411(11) of the Act. The primary parties involved were Kalgoorlie Lake View Pty Ltd (KLV), Macapa, Norkal, GRPL, and NKM. The dispute centred around the reorganisation of the corporate structure of these entities through the proposed scheme of arrangement. The Court had to determine whether to approve the scheme and whether to grant an exemption from certain statutory requirements.

The legal issues before the Court included whether the scheme of arrangement complied with the statutory requirements under the Corporations Act 2001 (Cth) and whether it was in the best interests of the members and creditors of the involved companies. Additionally, the Court needed to decide whether the application for exemption from section 411(11) of the Act was justified, considering the nature and circumstances of the reorganisation. The applicants argued that the exemption was necessary to facilitate a smooth and efficient restructuring process without imposing unnecessary administrative burdens.

The Court found that the proposed scheme of arrangement was in the best interests of the members and creditors of the companies involved. It was satisfied that the scheme met the statutory requirements under the Corporations Act 2001 (Cth) and would achieve a fair and equitable outcome for all stakeholders. The Court also determined that the exemption from section 411(11) of the Act was justified in the circumstances, given the complexity and scale of the reorganisation. The Court concluded that the exemption would not prejudice the rights of the members or creditors and would facilitate the efficient completion of the restructuring process.

The Court approved the scheme of arrangement, ordered the transfer of assets, liabilities, and legal proceedings of Macapa, Norkal, GRPL, and NKM to KLV, and exempted compliance with section 411(11) of the Act. The deregistration of Macapa, Norkal, GRPL, and NKM was ordered to occur 60 days after notice was served on the Australian Securities and Investments Commission. The Court also granted liberty to apply for further orders as necessary.

Orders

Orders of the court

1. Pursuant to section 411(6) of the Act, the scheme of arrangement ("the Scheme"), a copy of which is Schedule A to this order proposed between the plaintiffs and their respective members be approved.

2. Orders 3 to 8 below be made pursuant to section 413 of the Act for the purpose of facilitating the Scheme and are made subject to, and in accordance with, the terms of the Scheme.

3. Pursuant to section 413(1)(a) of the Act, the whole of the undertakings, property, and assets of Macapa, Norkal, GRPL and NKM shall be transferred to, and vested in, KLV without any further act or deed.

4. Pursuant to section 413(1)(a) of the Act, all liabilities, obligations and duties of Macapa, Norkal, GRPL and NKM, other than any Excluded Tax Liabilities, shall be transferred to and become the liabilities, obligations and duties of KLV, without any further act or deed.

5. Pursuant to section 413(1)(c) of the Act, all legal proceedings by or against each of Macapa, Norkal, GRPL and NKM shall be deemed to be continued by or against KLV (as the case may be) without any further act or deed.

6. Pursuant to section 413(1)(g) where, before the Effective Date, documentary or other evidence would have been admissible for or against the interests of Macapa, Norkal, GRPL and NKM, that evidence is admissible, on or at any time after that day, for or against the interests of KLV.

7. Pursuant to section 413(1)(g) of the Act, KLV will be taken, without any further act or deed to have:

7.1 credited to appropriate reserve accounts (including a reconstruction reserve account) the sums reflecting retained earnings (or accumulated losses), capital profits/asset revaluations and other reserves respectively in Macapa, Norkal, GRPL and NKM as at the Effective Date so that these amounts retain the same characteristics in KLV as previously existed in Macapa, Norkal, GRPL and NKM respectively; and

7.2 transferred from retained earnings to share capital, without the issue of any share, an amount equivalent to the gain, if any, arising from the difference between the net value of assets acquired from Macapa, Norkal, GRPL and NKM as a result of the scheme of arrangement and the carrying value of KLV's investments in Macapa, Norkal, GRPL and NKM, to the extent available in retained earnings, as at the Effective Date.

8. Pursuant to section 413(1)(d) of the Act, each of Macapa, Norkal, GRPL and NKM shall be deregistered without winding up and without further act or deed, following the expiry of 60 days from the date of service on the Australian Securities and Investments Commission of a notice of deregistration from Macapa, Norkal, GRPL and NKM.

9. Compliance with section 411(11) of the Act be dispensed with.

10. Liberty to apply.

For the purpose of these orders:

"Act" means the Corporations Act 2001 (Cth).

"assets" means any property, or a right, of any kind, and includes:

(a) any legal or equitable estate or interest (whether present or future, vested or contingent or tangible or intangible) in real or personal property of any kind, and

(b) any chose in action;

(c) any right, interest or claim of any kind, including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing),

(d) any asset within the meaning of Part IIIA of the Income Tax Assessment Act 1936 of the Commonwealth.

"Effective Date" means the last day of the month in which the last of the following occurs:

(a) office copies of any order of this Honourable Court pursuant to section 411(4)(b) of the Act approving the scheme of arrangement between each of the plaintiffs and their respective members; and

(b) the last of the conditions precedent to the scheme of arrangement are satisfied.

"Excluded Tax Liabilities" means liabilities for income tax but not contractual liabilities or rights to receivables arising under any contractual agreement for the sharing of any group tax liability arising in relation to the NAL tax consolidated group and any contractual agreement as between members of the NAL tax consolidated group, designed to provide compensation for various loss entities within the group by the various taxable entities within the group.

"GRPL" means the fourth plaintiff.

"KLV" means the first plaintiff.

"legal proceedings" means:

(a) any action, arbitration, regulatory inquiry or proceeding or cause of action which is at the Effective Date pending or existing by, against, in respect of, or in favour of, Macapa, Norkal, GRPL and NKM; and

(b) any cause of action, arbitration, regulatory inquiry or proceeding by, or against, in respect of, or in favour of, Macapa, Norkal, GRPL and NKM which arises after the Effective Date in respect of a contract made by Macapa, Norkal, GRPL and NKM before the Effective Date or which arises in respect of anything done or omitted to be done by Macapa, Norkal, GRPL and NKM before the Effective Date.

"liabilities" means a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective).

"Macapa" means the second plaintiff.

"NAL tax consolidated group" means the group of companies comprising NAL and its eligible wholly owned subsidiaries from time to time in accordance with election made pursuant to section 703-50 of the Income Tax Assessment Act 1936 (Cth) to form a tax consolidated group from 1 January 2003.

"NKM" means the fifth plaintiff.

"Norkal" means the third plaintiff.

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

MANSFIELD J

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Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

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IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 119 OF 2005

BETWEEN:	KALGOORLIE LAKE VIEW PROPRIETARY LTD FIRST PLAINTIFF MACAPA PTY LTD SECOND PLAINTIFF NORKAL PTY LTD THIRD PLAINTIFF NEWMONT GRPL PTY LTD FOURTH PLAINTIFF NORTH KALGURLI MINES PTY LTD FIFTH PLAINTIFF
JUDGE:	MANSFIELD J
DATE OF ORDER:	26 SEPTEMBER 2005
WHERE MADE:	ADELAIDE