FEDERAL COURT OF AUSTRALIA
Little World Beverages Limited, in the matter of Little World Beverages Limited [2012] FCA 1057
Citation: Little World Beverages Limited, in the matter of Little World Beverages Limited [2012] FCA 1057 Parties: LITTLE WORLD BEVERAGES LIMITED (ACN 081 128 225) File number: WAD 173 of 2012 Judge: MCKERRACHER J Date of judgment: 26 September 2012 Catchwords: CORPORATIONS – scheme of arrangement – application pursuant to s 411 of the Corporations Act 2001 (Cth) that company convene a meeting of members – consideration of exclusivity clause and deemed warranty and whether they were clearly disclosed in the scheme booklet Legislation: Corporations Act 2001 (Cth) s 411(1), 411(2), 411(17) Cases cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
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Re Victorian Grain Services Ltd (2000) 35 ACSR 198Date of hearing: 13 August 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Plaintiff: S Penglis Solicitor for the Plaintiff: Freehills Counsel for Anglo-Gaelic Investments Pty Ltd: R Forbes Solicitor for Anglo-Gaelic Investments Pty Ltd: King & Wood Mallesons
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 173 of 2012
IN THE MATTER OF LITTLE WORLD BEVERAGES LIMITED (ACN 081 128 225)
BETWEEN: LITTLE WORLD BEVERAGES LIMITED (ACN 081 128 225)
Plaintiff
JUDGE:
MCKERRACHER J
DATE OF ORDER:
13 AUGUST 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act):
(a)The Plaintiff, Little World Beverages Limited ACN 081 128 225 (LWB), convene a meeting (Scheme Meeting) of the ordinary shareholders in LWB (other than Anglo-Gaelic Investments Pty Ltd (AGI) or its related bodies corporate and persons holding shares in the Plaintiff for, or on behalf of, such persons) (Scheme Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement (Scheme) proposed to be made between LWB and the Scheme Shareholders, the terms of which are contained in the Explanatory Statement, a copy of which is Exhibit “TDG4” to the affidavit of Thomas David Gray sworn 10 August 2012…
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- AGLC
- Little World Beverages Limited, in the matter of Little World Beverages Limited [2012] FCA 1057
- Case
- [2012] FCA 1057
- Decision Date
CaseChat Overview and Summary
The court examined the prescribed disclosure requirements set out in Part 3 of Schedule 8 of the Corporations Regulations 2001 (Cth) and compared them with the relevant parts of the Scheme Booklet provided by LWB. It was established that LWB had provided the requisite notice to the Australian Securities and Investments Commission (ASIC) and had given ASIC a reasonable opportunity to review the scheme booklet and make submissions to the Court. The court was satisfied that all procedural requirements were met, and it found that the disclosure obligations had been met adequately.
Consequently, the court granted the orders as sought by LWB on 13 August 2012, directing the convening of a meeting of the company's members to consider the scheme of arrangement. The court also approved the scheme booklet for distribution to the members and specified the details of the meeting, including the location, time, and voting procedures. Additionally, the court ordered that the company publish an advertisement in a West Australian newspaper and required compliance with various procedural and disclosure requirements. The proceedings were stood over for the hearing of any application to approve the scheme, with liberty to apply on one day's notice.
The final orders included specific directives for the convening of the meeting, the distribution of the scheme booklet, and the publication of an advertisement. The court also provided for the dispensation of certain procedural rules and required the lodgement of an office copy of the orders with ASIC.
Orders
Orders of the court
1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act):
(a) The Plaintiff, Little World Beverages Limited ACN 081 128 225 (LWB), convene a meeting (Scheme Meeting) of the ordinary shareholders in LWB (other than Anglo-Gaelic Investments Pty Ltd (AGI) or its related bodies corporate and persons holding shares in the Plaintiff for, or on behalf of, such persons) (Scheme Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement (Scheme) proposed to be made between LWB and the Scheme Shareholders, the terms of which are contained in the Explanatory Statement, a copy of which is Exhibit “TDG4” to the affidavit of Thomas David Gray sworn 10 August 2012 (Scheme Booklet).
(b) The Scheme Meeting be held at 4:30pm (Western Standard Time (WST)) on Monday, 17 September 2012 at the Little Creatures Loft, 42 Mews Road, Fremantle, Western Australia.
(c) Ian Howard Cochrane, or failing him, David Robert Martin, be Chairperson of the Scheme Meeting.
(d) The Chairperson of the Scheme Meeting have the power to adjourn the Scheme Meeting at his absolute discretion.
(e) At the Scheme Meeting, a Scheme Shareholder will be entitled to one vote for each fully paid ordinary share in the capital of the Plaintiff that the person is registered as holding at 5:00pm WST on Friday, 28 September 2012.
(f) Voting on the resolution whether to approve the Scheme is to be conducted by way of poll.
(g) The Scheme Booklet in the form of Exhibit “TDG4” to the affidavit of Thomas David Gray sworn 10 August 2012, as amended by excising the words “on the Scheme Record Date” in the “Am I entitled to vote?” section on page 13 of the Scheme Booklet and replacing them with the words “at 4:30pm (Perth time) on 15 September 2012”, be approved for distribution to Scheme Shareholders.
(h) On or before 5:00pm WST on Friday, 17 August 2012 there be dispatched by pre-paid post, or in the case of a member whose registered address is outside the country by pre-paid airmail, addressed to the relevant addresses in the register of members of the Plaintiff:
(i) a document substantially in the form of the Scheme Booklet;
(ii) a proxy form for the Scheme Meeting substantially in the form of Exhibit “IHC6” to the affidavit of Ian Howard Cochrane sworn 10 August 2012; and
(iii) a reply paid envelope addressed to Security Transfers Registrars Pty Ltd.
(i) The time by which the proxy forms for the Scheme Meeting must be returned is 4:30pm (WST) on Saturday, 15 September 2012 (or, if the meeting is adjourned or postponed, no later than 48 hours before the resumption of the meeting in relation to the resumed part of the meeting).
2. Rule 2.15 of the Federal Court (Corporation) Rules 2000 (Cth) shall not apply to the Scheme Meeting.
3. Compliance with Rule 3.4(3)(a) and Form 6 of the Federal Court (Corporations) Rules 2000 (Cth) be dispensed with.
4. The Plaintiff publish once in the West Australian newspaper an advertisement substantially in the form of Annexure A to these Orders, such advertisement to be published on or before 12 September 2012.
5. An office copy of this Order be lodged with the Australian Securities & Investments Commission before 5:00pm WST on 13 August 2012.
6. The proceedings be stood over until 10:15am on 19 September 2012 before Justice McKerracher for the hearing of any application to approve the Scheme.
7. There be liberty to apply on one day’s notice.
8. These Orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
Section 411(1) and s 411(2) CA relevantly provide as follows:411 Administration of compromises etc.(1)Where a compromise or arrangement is proposed between a Part 5.1 body and its creditors or any class of them or between a Part 5.1 body and its members or any class of them, the Court may, on the application in a summary way of the body or of any creditor or member of the body, or, in the case of a body being wound up, of the liquidator, order a meeting or meetings of the creditors or class of creditors or of the members of the body or class of members to be convened in such manner, and to be held in such place or places (in this jurisdiction or elsewhere), as the Court directs and, where the Court makes such an order, the Court may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting or meetings.…(2)The Court must not make an order pursuant to an application under subsection (1) or (1A) unless:(a)14 days notice of the hearing of the application, or such lesser period of notice as the Court or ASIC permits, has been given to ASIC; and(b)the Court is satisfied that ASIC has had a reasonable opportunity:(i)to examine the terms of the proposed compromise or arrangement to which the application relates and a draft explanatory statement relating to the proposed compromise or arrangement; and(ii)to make submissions to the Court in relation to the proposed compromise or arrangement and the draft explanatory statement. It follows, as LWB submits, that the Court has a discretion which is enlivened where:(a)a compromise or arrangement is proposed between a Pt 5.1 body and its members or any part of them (s 411(1));(b)application for the order is made in a summary way by the body or a creditor or member of the body (s 411(1)); and(c)14 days notice of the hearing of the application has been given to the Australian Securities and Investments Commission (ASIC), or such less period of notice as the Court or ASIC permits (s 411(2)(a)); and(d)the Court is satisfied that ASIC has had a reasonable opportunity to examine the terms of the proposed compromise or arrangement to which the application relates and a draft of the explanatory statement relating to the proposed compromise or arrangement and to make submissions to the Court in relation thereto (s 411(2)(b). Those matters were all established on the evidence. Specifically:(a)from the company extract, LWB is a Pt 5.1 body as defined in s 9 CA;(b)a scheme designed to effect the acquisition of shares of one company by another is a ‘compromise or arrangement’ within the meaning of s 411(1) CA;(c)LWB filed the originating process seeking, among other things, an order pursuant to s 411(1) CA;(d)the originating process was served on ASIC on 30 July 2012. More than 14 days notice of the hearing of this application was given to ASIC;(e)a draft of the Scheme Booklet was provided to ASIC on 25 July 2012, 19 days before the hearing of the application; and(f)LWB received written confirmation from ASIC, dated 10 August 2012, that it did not propose to appear at the hearing to make submissions or to intervene or oppose the Scheme at the hearing of this application.THE PRINCIPLES