Re Lion Nathan Limited - [2009] FCA 870

FEDERAL COURT OF AUSTRALIA
Lion Nathan Limited, in the matter of Lion Nathan Limited [2009] FCA 870
Corporations Act 2001 (Cth) ss 260A, 411
Federal Court (Corporations) Rules 2000 (Cth) r 3.3(2)
LION NATHAN LIMITED, IN THE MATTER OF LION NATHAN LIMITED
NSD 790 of 2009
EMMETT J
5 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 790 of 2009

LION NATHAN LIMITED
Plaintiff

JUDGE:

EMMETT J

DATE OF ORDER:

5 AUGUST 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.There be convened by the plaintiff a meeting of its shareholders other than Kirin Holdings Company, Limited (“Kirin”) and its related bodies corporate (“Non-Kirin Shareholders”) to be held at or about 10.00 am (Sydney time) on 17 September 2009 (“Scheme Meeting”), for the purposes of considering and, if thought fit, agreeing (with or without modification) to the proposed Scheme of Arrangement in the form set out in annexure “B” to the draft Scheme Booklet at Tab 5 of Exhibit “NAV-1” (“Scheme of Arrangement”).
2.The Scheme Meeting be held at the Grand Ballroom, the Hilton Sydney, 488 George Street, Sydney in New South Wales.
3.The explanatory statement, constituted in the form of the document entitled “Scheme Booklet” at Tab 5 of Exhibit “NAV-1”, as amended by Exhibit “1”, including the documents described therein respectively as annexures “A”, “B”, “C”, “D”, “E” and “F” and incorporating a letter and report of Lonergan Edwards & Associates Limited, be approved for distribution to the Non-Kirin Shareholders.
4.Notice of the Scheme Meeting be given to those Non-Kirin Shareholders whose address in the register of shareholders of the Plaintiff maintained by Computershare Investor Services Pty Limited is in New Zealand by dispatch of the documents referred to in Order 2 by bulk delivery via air courier from Sydney to Auckland (departing on or about 18 August 2009) and individual mail from Auckland by pre-paid ordinary post to each such shareholder (on or before 19 August 2009).
5.To the extent inconsistent with Order 3 above, rule 3.3(2) of the Federal Court (Corporations) Rules 2000 (Cth) not apply in respect of the Scheme Meeting.
6.Geoffrey Thomas Ricketts or, failing him, Duncan Harold Makeig are authorised to act as chairperson for the Scheme Meeting referred to in Order 1 above and report to the Court on the outcome of the meeting.
7.The chairperson of the Scheme Meeting appointed under Order 5 have power to adjourn the Scheme Meeting if, in his opinion, that is necessary or desirable.
8.Save for Regulation 5.6.13 of the Corporations Regulations 2001 (Cth), rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the meeting referred to in Order 1 above.
9.The plaintiff be granted liberty to apply.
10.This proceeding be stood over until 7 October 2009 at 9:30 a.m. before Justice Emmett, or such other time as the Court directs, for consideration of orders approving the Scheme of Arrangement.
11.These orders be entered forthwith.

THE COURT ORDERS THAT:
12.Until further order…

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 Lion Nathan Limited

Details

AGLC: Re Lion Nathan Limited [2009] FCA 870
Case: [2009] FCA 870
Decision Date: 5 August 2009

CaseChat Overview and Summary

The case of Re Lion Nathan Limited involved a dispute concerning the confidentiality of certain documents and information. The parties involved were Kirin Holdings Company, Limited, and Lion Nathan Limited, with the matter being heard in a relevant Australian court. The central issue before the court was whether specific documents and information provided by the parties should be treated as confidential and exempt from disclosure to third parties, except under certain circumstances.

The legal issues that the court had to decide revolved around the proper interpretation of confidentiality orders in relation to the documents and information provided by the parties. The court had to consider the scope of the confidentiality orders, the exceptions to those orders, and the persons to whom the information could be disclosed without breaching the confidentiality provisions. Additionally, the court needed to determine the appropriate handling and storage of the exhibits referenced in the orders.

In its reasoning, the court outlined the terms of the confidentiality orders, specifying the exact information and documents that were to be treated as confidential. It identified the passages in the affidavits and the exhibits that were subject to the confidentiality provisions and clarified the persons to whom these documents could be disclosed. The court also addressed the handling of the exhibits, specifying that they should be returned to the solicitors for the Plaintiff and kept in safe custody for a designated period following the conclusion of the proceedings.

The court's outcome was the issuance of specific orders concerning the confidentiality of the information and documents. These orders mandated that certain parts of the affidavits and exhibits be treated as confidential and only disclosed to the Court, the parties involved, and their respective advisors. Furthermore, the court ordered the return of specific exhibits to the solicitors for the Plaintiff to be kept in safe custody for a period of 28 days following the conclusion of the proceedings.

Orders

Orders of the court

12. Until further order of the Court or except with the consent of the Plaintiff the following information and documents be treated as confidential and not be provided or disclosed to any person except as indicated in Order 14:

(a) the passages of the affidavit of Jamie Clifford Tomlinson sworn on 3 August 2009 which are shaded yellow;

(b) the passages of the first affidavit of Duncan Harold Makeig sworn on 4 August 2009 which are shaded yellow;

(d) the documents behind Tabs 52, 53, 54, 55 and 56 of Exhibit DHM-1.

13. Until further order of the Court or except with the consent of Kirin Holdings Company, Limited (“Kirin”) the following information and documents be treated as confidential and not be provided or disclosed to any person except as indicated in Order 14:

(a) paragraphs 17 to 19 inclusive of the affidavit of Hirotake Kobayashi affirmed 4 August 2009;

(b) Exhibit HK-4 in its entirety; and

14. Orders 13 and 14 do not restrict access to the information and documents identified in those orders to the following persons:

(a) the Court and Court staff.

(b) the Plaintiff, personnel of the Plaintiff and the Plaintiff’s advisors; and

15. Subject to further order of the Court, at the conclusion of the hearing in this proceeding on 5 August 2009, the following Exhibits be returned to the solicitors for the Plaintiff to be kept in safe custody for at least 28 days following the conclusion of these proceedings:

(a) Exhibit JCT-1

(b) Exhibit DHM-1;

(d) Exhibit HK-5.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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LION NATHAN LIMITED Plaintiff
JUDGE:	EMMETT J
DATE OF ORDER:	5 AUGUST 2009
WHERE MADE:	SYDNEY