SUPREME COURT OF QUEENSLAND
CITATION:
Re Mincom Ltd [No 3] [2007] QSC 207
PARTIES:
MINCOM LTD
(applicant)
v
EAM SOFTWARE FINANCE PTY LTD
(first respondent)and
AUSTRALIAN SECURITIES INVESTMENT COMMISSION(second respondent)
FILE NO:
SC No BS913 of 2007
DIVISION:
Trial
PROCEEDING:
Originating application
COURT:
Supreme Court
DELIVERED AT:
Brisbane
HEARING AND JUDGMENT DATE:
24 April 2007
REASONS DELIVERED ON:
22 August 2007
JUDGE:
Fryberg J
ORDER:
1) Pursuant to subsections 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth), the scheme of arrangement between the applicant and its shareholders, having been duly agreed to in accordance with section 411(4)(a)(i) of the Act at meetings of the shareholders of the applicant, be approved, subject to the following alteration, namely the deletion from the definition of “Second Court Date” in clause 1.1 of the words “the first day on which an application made to the Court for a Scheme Order under paragraph 411(4)(b) of the Corporations Act is heard”, and the insertion in their place of the words “the day on which the order is made under paragraph 411(4)(b) of the Corporations Act approving the Scheme with or without modification,” so that the scheme of arrangement so approved and altered is in the form annexed hereto and marked “A”
2) Pursuant to section 411(12) of the Corporations Act 2001, the applicant be exempted from compliance with section 411(11) in relation to the order at paragraph 1
CATCHWORDS:
Corporations – Arrangements and reconstructions – Schemes of arrangement – Explanatory Statement – Failure to lodge on time – Warnings to holders of encumbered shares – Equality of treatment of encumbrances – Relevance of purpose of proposers where ASIC statement of non-objection provided – Nature of purpose – Proof of purpose – Onus of purpose – Dispensing with annexation of court order
Corporations Act 2001 s411, s412(6), s624, s1322,
Re ACM Gold Ltd (1992) 34 FCR 530, cited
Re Advanced Bank Australia Ltd (1997) 138 FLR 281, referred to
Re APN News and Media Ltd[2007] FCA 770, cited
Re Arnotts Ltd (1997) 16 ACLC 423, considered
Re Capel Finance Ltd[2005] NSWSC 522, followed
Re Crown Diamonds NL[2005] WASC 93, approved
Re CSR Ltd[2003] FCA 285, cited
Re Foundation Healthcare Ltd (No 2)[2002] FCA 973, followed
Re International Goldfields Ltd[2003] WASC 86, cited
Re International Goldfields Ltd[2004] WASC 112, cited
Re MIM Holdings Ltd (2003) 45 ACSR 554, considered
Re MIM Holdings Ltd[2003] QSC 181, cited
Re Mincom Ltd[2007] QSC 37, referred to
Re Mincom Ltd [No 2][2007] QSC 58, referred to
Re NRMA Ltd; Re BRL Hardy Ltd [2003] SASC97, cited
Re Permanent Trustee Co Ltd[2002] NSWSC 1177, cited
Re Ranger Minerals Ltd[2002] WASC 207, discussed
Re Stockbridge Ltd (1993) 9 ACSR 637, followed
Re WebCentral Group Ltd[2006] FCA 1203, referred to
SGIC Insurance Ltd v Insurance Australia Ltd[2004]…
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- AGLC
- Re Mincom Ltd (No 3) [2007] QSC 207
- Case
- [2007] QSC 207
- Decision Date
CaseChat Overview and Summary
The court examined the statutory requirements and found that while the explanatory statement was indeed not lodged on time, the delay was not sufficiently serious to invalidate the scheme. The court noted that ASIC had issued a statement of non-objection, which was a significant factor in its decision. The court further held that the purpose behind the proposers' scheme was relevant but did not shift the onus of proving the purpose onto the proposers. The court considered that the late filing did not prejudice the shareholders holding encumbered shares, as they had been adequately warned. The court ruled that the scheme could be approved with a modification to the definition of "Second Court Date" to ensure clarity and compliance with the Act. Ultimately, the court decided to exempt the company from compliance with certain provisions of the Act in relation to the scheme, allowing the restructuring to proceed under the approved and modified scheme.
The court's final orders approved the scheme of arrangement between Mincom Limited and its shareholders, subject to the modification of the definition of "Second Court Date." The court also exempted the applicant from compliance with certain sections of the Act, ensuring that the scheme could proceed without further hindrance. This decision allowed the company to move forward with its restructuring efforts while addressing the procedural shortcomings identified in the proceedings.
Orders
Orders of the court
1) Pursuant to subsections 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth), the scheme of arrangement between the applicant and its shareholders, having been duly agreed to in accordance with section 411(4)(a)(i) of the Act at meetings of the shareholders of the applicant, be approved, subject to the following alteration, namely the deletion from the definition of “Second Court Date” in clause 1.1 of the words “the first day on which an application made to the Court for a Scheme Order under paragraph 411(4)(b) of the Corporations Act is heard”, and the insertion in their place of the words “the day on which the order is made under paragraph 411(4)(b) of the Corporations Act approving the Scheme with or without modification,” so that the scheme of arrangement so approved and altered is in the form annexed hereto and marked “A”
2) Pursuant to section 411(12) of the Corporations Act 2001, the applicant be exempted from compliance with section 411(11) in relation to the order at paragraph 1
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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