FEDERAL COURT OF AUSTRALIA
Marengo Mining Ltd, in the matter of Marengo Mining Ltd [2012] FCA 1220
Citation: Marengo Mining Ltd, in the matter of Marengo Mining Ltd [2012] FCA 1220 Parties: MARENGO MINING LTD (ACN 099 496 474) File number: WAD 287 of 2012 Judge: BARKER J Date of judgment: 5 November 2012 Catchwords: CORPORATIONS – application pursuant to s 411 Corporations Act 2001 (Cth) – application to approve scheme of arrangement Legislation: Corporations Act 2001 (Cth) s 9, s 411(1), s 411(2)(a), s 411(4)(b), s 411(17)(a), s 412(1), s 412(6), Pt 5.1
Corporations Regulations 2001 (Cth)
Securities Act of 1933 (USA)Cases cited: Anzon Energy Limited, in the matter of Anzon Energy Limited [2007] FCA 2080
Brambles Industries Ltd, in the matter of Brambles Industries Ltd and the Corporations Act 2001 (Cth) (No 2) [2006] FCA 1719
Corporations Act, in the matter of KAZ Group Limited [2004] FCA 738
Excel Coal Limited, In the matter of Excel Coal Limited [2006] FCA 1240
Felix Resources Limited; In the matter of Felix Resources Limited (No. 3) [2009] FCA 1483
Hostworks Group Limited ACN 008 010 820, in the matter of Hostworks Group Limited ACN 008 010 820 [2008] FCA 64
In the matter of Coles Group Ltd [2007] VSC 389
Investa Properties Limited, in the matter of Investa Properties Limited [2007] FCA 1104
Macquarie Private Capital A Limited [2008] NSWSC 323
Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400
Re Application of NRMA LTD [No 2] [2000] NSWSC 408; (2000) 156 FLR 412
Re AXA Asia Pacific Holdings Ltd [2011] VSC 4
Re Brambles Industries Ltd (ACN 000 129 868) [2006] FCA 1273; (2006) 59 ACSR 501
Re Buka Minerals NL (1983) 8 ACLR 507
Re Coles Group Ltd (No 2) [2007] VSC 523; (2007) 215 FLR 411
Re Foundation Healthcare Ltd [2002] FCA 742; (2002) 42 ACSR 252
Re International Goldfields Ltd [2003] WASC 86
Re Rural Press Ltd [2007] FCA 314; (2007) 61 ACSR 373
Re Stockbridge Ltd (1993) 9 ACSR 637
Re Victorian Grain Services Ltd [2000] VSC 334; (2000) 35 ACSR 198
Re Westfield Holdings Ltd (No 2901/04) [2004] NSWSC 458; (2004) 49 ACSR 734
Sovereign Life Assurance Company v Dodd [1892] 2 QB 573Date of hearing: 29 October 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 46 Counsel for the Plaintiff: Mr PI Jooste QC Solicitor for the Plaintiff: Gilbert + Tobin
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 287 of 2012
MARENGO MINING LTD (ACN 099 496 474)
PlaintiffJUDGE:
BARKER J
DATE OF ORDER:
5 NOVEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) the plaintiff convene a meeting of the holders of fully paid ordinary shares in the plaintiff at the Lower Pavilion, Next Generation Club, Kings Park, 21 Kings Park Road, West Perth, Western Australia at…
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- AGLC
- Marengo Mining Ltd, in the matter of Marengo Mining Ltd [2012] FCA 1220
- Case
- [2012] FCA 1220
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Court should approve the convening of the meeting to allow shareholders to vote on the proposed scheme. This involved considering the provisions of the Corporations Act and any relevant case law. The Court needed to assess whether the application met the statutory requirements and if the convening of the meeting was in the best interests of the company and its shareholders.
The Court found that the application met the statutory requirements for convening a meeting under the Corporations Act. The Court was satisfied that the scheme booklet complied with the necessary legislative provisions and that the convening of the meeting would provide an appropriate opportunity for shareholders to consider and vote on the proposed scheme. The Court also noted that while certain issues might be more appropriately addressed at a later stage, this did not impact the current decision to convene the meeting.
Accordingly, the Court ordered the convening of the shareholders' meeting as requested. The meeting was to be held at the specified location and time, with detailed instructions on the conduct of the meeting and the distribution of relevant documents to shareholders. The Court also granted leave for the applicant to apply for approval of the scheme following the meeting. The Court's decision was aimed at facilitating a transparent and fair process for the shareholders to consider the proposed scheme of arrangement.
Orders
Orders of the court
1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) the plaintiff convene a meeting of the holders of fully paid ordinary shares in the plaintiff at the Lower Pavilion, Next Generation Club, Kings Park, 21 Kings Park Road, West Perth, Western Australia at 4.00 pm (WST) on Thursday 6 December 2012 for the purpose of considering and, if thought fit, agreeing (with or without modification) to the Scheme (Scheme Meeting).
2. Pursuant to s 1319 of the Act, the Scheme Meeting be convened, held and conducted in accordance with the provisions of:
(a) Part 2G.2 of the Act that apply to the members of a company; and have not been displaced or modified by the plaintiff's constitution; and
(b) the plaintiff’s constitution that are not inconsistent with that Part and that apply to a meeting of members,
save that all voting at the Scheme Meeting be by poll demanded by the chairman.
3. Pursuant to s 1319 of the Act and for the purposes of regulation 7.11.37(3)(b) of the Corporations Regulations 2001 (Cth) (the Corporations Regulations), the specified time for the purposes of identification of securities holdings for the Scheme Meeting, shall be 4.00 pm (WST) on Tuesday 4 December 2012 (Snap-Shot Date), with power to the chairman of the Scheme Meeting in his absolute discretion to allow late proxies up to the commencement of the meeting.
4. The plaintiff be exempted from compliance with the requirements of Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), save in so far as that Rule applies reg 5.6.13 (without the form 530 stipulated therein) of the Corporations Regulations to the Scheme Meeting.
5. Vincent Ian Masterton-Hume or, failing him, Leslie Sidney George Emery, shall act as chairman of the Meeting and report the results of the Scheme Meeting to this Court.
6. The chairman appointed for the Scheme Meeting has the exclusive power to decide whether to adjourn the meeting in his absolute discretion.
7. The proposed scheme booklet comprising the explanatory statement and its annexures and the proposed proxy form for the Scheme Meeting which are annexures MAC-9 and MAC-11 to the affidavit of Mark Andrew Churchward sworn 24 October 2012 (Churchward Affidavit), which scheme booklet comprises the explanatory statement as required by s 412(1)(a) of the Act, be and is hereby approved (subject to any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for purposes of registration thereof under s 412(6) of the Act).
8. No later than 6.00 pm (WST) on Tuesday 6 November 2012, the plaintiff (subject to the registration of the Scheme Booklet by ASIC pursuant to s 412(6) of the Act) dispatch documents comprising the:
(a) Scheme booklet; and
(b) Notice of Court ordered Scheme Meeting and Proxy Form,
which are annexures MAC-9 and MAC-11 to the Churchward Affidavit to all the shareholders of the plaintiff by ordinary pre-paid post (or, in the case of overseas members, by airmail) at their addresses appearing on the plaintiff’s register of members on the closest practicable business day before the dispatch of documents.
9. Leave be given to the plaintiff to make application for orders under s 411(4) and s 411(6) of the Act following the Scheme Meeting for approval of the Scheme to be heard at 10.15 am on Tuesday 18 December 2012 or such other date as the Court sees fit to set for such purpose.
10. The plaintiff publish notice of the hearing of that application in the form or to the effect of the advertisement (scheduled below for convenience) in annexure SGS-7 to the affidavit of Sarah Jane Gaffney-Smith affirmed 24 October 2012 once in The West Australian newspaper at least 5 days before the date fixed for the hearing of that application.
11. There be liberty to apply upon the giving of 18 hours notice to ASIC.
12. An office copy of this order shall be lodged with ASIC as soon as practicable after these orders are made.
SCHEDULE
NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT
Take notice that at 10.15 am on Tuesday 18 December 2012 the Federal Court of Australia at the Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth, will hear an application by Marengo Mining Limited (Marengo) seeking the approval of a Scheme of Arrangement proposed between Marengo and its members, if such Scheme of Arrangement is approved by those members at the Court ordered meeting convened to be held on Thursday 6 December 2012.
If you wish to oppose the approval of the Scheme of Arrangement, you must file and serve on Marengo a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on Marengo at its address for service at least one day before the day fixed for the hearing of the application.
The address for service for Marengo is at Gilbert + Tobin, Lawyers, 1202 Hay Street, West Perth WA 6005 (Attention: Sarah Gaffney-Smith).
Gilbert + Tobin, Lawyers
1202 Hay Street
West Perth WA 6005
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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