CITATION: RE KINGWEST RESOURCES LTD; EX PARTE KINGWEST RESOURCES LTD [2023] WASC 190
CORAM: HILL J
HEARD: 5 APRIL 2023, 8 MAY 2023 & 18 MAY 2023
DELIVERED : 5 APRIL 2023 & 18 MAY 2023
PUBLISHED : 2 JUNE 2023
FILE NO/S: COR 48 of 2023
MATTER: IN THE MATTER OF KINGWEST RESOURCES LTD
EX PARTE
KINGWEST RESOURCES LIMITED
Plaintiff
Catchwords:
Corporations law - Scheme of arrangement - Application for orders convening scheme meeting under s 411(1) of the Corporations Act 2001 (Cth) - Whether requirements to order scheme meeting are satisfied - Orders made convening meeting
Corporations law - Scheme of arrangement - Communications with shareholders without court approval - Whether court approval required
Corporations law - Scheme of arrangement - Application for orders approving the scheme under s 411(b) of the Corporations Act 2001 (Cth) - Orders made approving scheme
Legislation:
Corporations Act 2001 (WA), s 411(1), s 411(4)(b), s 411(6), s 411(11), s 411(17), s 412(1)(a), s 1319
Re Walsh & Company Investments Ltd as responsible entity of Fort Street Real Estate Capital Fund I, Fort Street Real Estate Capital Fund II, Fort Street Real Estate Capital Fund III and Fort Street Real Estate Capital Fund IV [2020] NSWSC…
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 Kingwest Resources Ltd [2023] WASC 190
Case
[2023] WASC 190
Decision Date
CaseChat Overview and Summary
The case of Kingwest Resources Ltd involves an application by Kingwest, a public company listed on the Australian Securities Exchange, to convene meetings of its shareholders and optionholders to consider two interconditional schemes with Brightstar Resources Limited. The schemes propose that Brightstar will acquire all shares in Kingwest and replace its options with Brightstar options. The application was made under sections 411 and 1319 of the Corporations Act 2001 (Cth) (Act) and heard on 5 April 2023. The court made orders convening the scheme meetings and approving the distribution of a scheme booklet to shareholders and optionholders. The scheme meetings were held on 12 May 2023, where both the shareholder scheme and the option scheme were approved by the requisite statutory majority. On 18 May 2023, the court made orders approving the schemes.
The court considered several legal issues, including whether the requirements for convening the scheme meetings were satisfied, whether court approval was required for communications with shareholders, and whether the schemes were fair and reasonable. The court found that the formal requirements were met, and the schemes were fit for consideration by the shareholders. The court also found that the communications with shareholders, including a webinar and proxy solicitation, did not compromise the integrity of the voting process. The court approved the schemes after considering factors such as good faith voting, fairness, and full disclosure.
The final orders made by the court approved the proposed schemes and exempted them from certain provisions of the Act. The decision demonstrates the court's role in ensuring that scheme of arrangement applications comply with statutory and procedural requirements and that the schemes are fair and reasonable for the shareholders.