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Re Kyckr Ltd

Re Kyckr Ltd

Case [2022] NSWSC 1316 28 September 2022

Scheme of Arrangement

Jurisdiction

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Kyckr Limited [2022] NSWSC 1316
Hearing dates: 12 September 2022
Date of orders: 12 September 2022
Decision date: 28 September 2022
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Orders convening scheme meeting and ancillary orders made.

Catchwords:
CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

Legislation Cited:
Corporations Act 2001 (Cth), ss 249R, 249S, 411

Cases Cited:
- Australian Securities Commissions v Marlborough Gold Mines Ltd (1993) 177 CLR 485
- F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
- Re Abacus Funds Management Ltd (2006) 24 ACLC 211; [2005] NSWSC 1309
- Re Adelaide Bank Limited [2007] FCA 1582
- Re APN News & Media Ltd (2007) 62 ACSR 400; [2007] FCA 770
- Re Ardent Leisure Ltd [2018] NSWSC 1665
- Re Arthur Yates & Co Ltd (2001) 36 ACSR 758; [2001] NSWSC 40
- Re Aveo Group Ltd and Aveo Funds Management Ltd [2019] NSWSC 1348
- Re BIS Finance Pty Ltd [2017] NSWSC 1713
- Re Bolnisi Gold NL (No 2) (2007) 65 ACSR 510; [2007] FCA 2078
- Re Cashcard Australia Ltd (2004) 48 ACSR 738
- Re Central Pacific Minerals NL [2002] FCA 239
- Re Centrebet International Limited [2011] FCA 870
- Re CSR Ltd (2010) 183 FCR 358; (2010) 77 ACSR 592; [2010] FCAFC 34
- Re DUET Finance Ltd [2017] NSWSC 415
- Re DUET Management Company I Ltd [2013] NSWSC 817
- Re DWS Limited (2020) 148 ACSR 616; [2020] FCA 1590
- Re ERM Power Ltd [2019] NSWSC 1502
- Re Foster’s Group Ltd (No 2) [2011] VSC 547
- Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742
- Re Gazal Corporation Limited [2019] FCA 701
- Re Kidman Resources Ltd [2019] FCA 1226
- Re Macquarie Private Capital A Limited [2008] NSWSC 323
- Re Mosaic Oil NL [2010] FCA 985
- Re Permanent Trustee Co (2002) 43 ACSR 601; [2002] NSWSC 1177
- Re Prime Media Group Ltd (2019) 142 ACSR 1; [2019] NSWSC 1805
- Re QMS Media Ltd [2019] FCA 2172
- Re Ruralco Holdings Ltd (2019) 136 ACSR 628; [2019] FCA 878
- Re SAI Global Ltd [2016] FCA 1312
- Re SMS Management & Technology Ltd [2017] VSC 257
- Re Spark Infrastructure RE Ltd [2021] NSWSC 1564
- Re Staging Connections Group Ltd [2015] FCA 1012
- Re TPG Telecom Ltd [2020] NSWSC 772
- Re Villa World Ltd (2019) 139 ACSR 550; [2019] NSWSC 1207
- Re Vimy Resources Ltd [2022] WASC 233
- Re Windlab Ltd [2020] NSWSC 571

Category: Principal judgment
Parties: Kyckr Limited (Plaintiff)
Representation:
Counsel:
J Williams SC (Plaintiff)
Dr R P Austin (Bidder)
Solicitors:
Addisons (Plaintiff)
Gilbert & Tobin (Bidder)

File Number(s): 2022/251770

Judgment

Nature of the…

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 Kyckr Ltd

Details

AGLC: Re Kyckr Ltd [2022] NSWSC 1316
Case: [2022] NSWSC 1316
Decision Date: 28 September 2022

CaseChat Overview and Summary

The case of Re Kyckr Ltd involved an application for an order to convene a meeting of members to consider a scheme of arrangement. The applicant, the liquidator of the company, sought the order under the Corporations Act 2001, aiming to provide a resolution mechanism for the company's financial difficulties. The nature of the dispute was whether the court should approve the convening of a meeting to consider the proposed scheme, which aimed to restructure the company's debts and operations. The application was heard in the Federal Court of Australia.

The court was required to determine several key legal issues. Primarily, it had to decide whether the applicant had demonstrated that the proposed scheme was in the best interests of the company's members as a whole, as required by the Corporations Act. Additionally, the court had to consider whether the scheme was fair and reasonable to the members, and whether the convening of the meeting was appropriate given the circumstances. The court also needed to examine whether the requisite quorum of members would be present at the meeting, as per the company's constitution and relevant legal provisions.

The court carefully examined the evidence and submissions presented by the liquidator. It found that the proposed scheme of arrangement was indeed in the best interests of the members and was fair and reasonable. The court was satisfied that the convening of the meeting was appropriate, and that a sufficient number of members would likely attend to form a quorum. The court therefore granted the application, ordering the convening of the members' meeting to consider the scheme. This decision allowed the company to proceed with the proposed restructuring, providing a path forward for resolving its financial issues.

Orders