FEDERAL COURT OF AUSTRALIA
Mosaic Oil NL, in the matter of Mosaic Oil NL (No 2) [2010] FCA 1186
Citation: Mosaic Oil NL, in the matter of Mosaic Oil NL (No 2) [2010] FCA 1186 Parties: MOSAIC OIL NL (ACN 003 329 084) File number(s): NSD 1064 of 2010 Judge: JACOBSON J Date of judgment: 11 October 2010 Catchwords: CORPORATIONS – scheme of arrangement – second Court hearing – no separate class of shareholders but subcategories of shareholders referred to – dispatch of incorrect proxy forms, procedural irregularity – amended Deed Poll – amendments to Scheme documents – Scheme approved with alterations proposed Legislation: Corporations Act 2001 (Cth) ss 411, 1322 Cases cited: Macquarie Private Capital A Limited [2008] NSWSC 323 discussed
Mosaic Oil NL, in the matter of Mosaic Oil NL [2010] FCA 985 referred to
Re Arthur Yates & Co Limited (2001) 36 ACSR 758 referred to
Re Coles Group Limited (No 2) (2007) 65 ACSR 494 referred to
Re Independent Practitioner Network Limited (No 2) (2008) 26 ACLC 1,249 followed
Re NRMA Ltd (2003) 33 ACSR 595 cited
Re Permanent Trustee Co Ltd (2002) 43 ACSR 601 followed
Re Seven Network Limited (No 3) (2010) 77 ACSR 701 referred to
Re Rusina Mining NL (No 2) (2010) 78 ACSR 615 discussed
SGIC Insurance Limited v Insurance Australia Limited (2004) 51 ACSR 593 citedDate of hearing: 11 October 2010 Date of last submissions: 11 October 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Plaintiff: Mr F Gleeson SC Solicitor for the Plaintiff: Chang, Pistilli & Simmons Counsel for AGL Energy Limited (with leave): Mr RM Foreman Solicitor for AGL Energy Limited: Allens Arthur Robinson
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1064 of 2010
IN THE MATTER OF MOSAIC OIL NL (ACN 003 329 084)
MOSAIC OIL NL (ACN 003 329 084)
Plaintiff
JUDGE:
JACOBSON J
DATE OF ORDER:
11 OCTOBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to clause 7.1 of the deed poll (“Deed Poll”) executed by AGL Energy Limited (“AGL”) in favour of shareholders of Mosaic Oil NL (“Mosaic”) other than Excluded Shareholders (“Shareholders”) on 3 September 2010, the amendments to the Deed Poll set out in Annexure “A” to these Orders do not preclude approval of the scheme of arrangement between Mosaic and its Shareholders, as set out in the following Orders (“Scheme”).
2.Pursuant to s 411(4)(b) and (6) of the Corporations Act 2001 (Cth) (“the Act”), the Scheme between Mosaic and its Shareholders, being in the form of the Scheme contained in Annexure B of the Scheme Booklet which was registered with the Australian Securities and Investments Commission on 6 September 2010 and assigned document number 026139310, be approved subject to the following alterations to the Scheme:
(a)inserting the words “11 October” before the reference to “2010” in the “Date” of the Scheme on page 1;
(b)inserting the words “
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- Case
- [2010] FCA 1186
- Decision Date
CaseChat Overview and Summary
The Court considered a range of authorities and previous decisions, particularly the case of Re Arthur Yates & Co Limited, to assess the impact of procedural irregularities on the approval of the scheme. It found that while there were procedural irregularities, they did not preclude approval of the scheme. The Court also examined the proposed amendments to the deed poll and scheme documents, concluding that the changes were necessary and did not fundamentally alter the terms of the arrangement to the detriment of the shareholders.
In approving the scheme, the Court made several orders to reflect the amendments to the deed poll and scheme documents. These included changes to the date of the scheme, modifications to definitions within the scheme, and corrections to numerical values and typographical errors. The Court also granted an exemption for Mosaic Oil NL from certain compliance requirements, ensuring the scheme could proceed as intended.
The final orders approved the amended scheme, with specific alterations to the deed poll and scheme documents, and exempted Mosaic Oil NL from compliance with certain statutory provisions. These orders were to be implemented immediately, finalising the arrangements between Mosaic Oil NL and its shareholders as proposed.
Orders
Orders of the court
1. Pursuant to clause 7.1 of the deed poll (“Deed Poll”) executed by AGL Energy Limited (“AGL”) in favour of shareholders of Mosaic Oil NL (“Mosaic”) other than Excluded Shareholders (“Shareholders”) on 3 September 2010, the amendments to the Deed Poll set out in Annexure “A” to these Orders do not preclude approval of the scheme of arrangement between Mosaic and its Shareholders, as set out in the following Orders (“Scheme”).
2. Pursuant to s 411(4)(b) and (6) of the Corporations Act 2001 (Cth) (“the Act”), the Scheme between Mosaic and its Shareholders, being in the form of the Scheme contained in Annexure B of the Scheme Booklet which was registered with the Australian Securities and Investments Commission on 6 September 2010 and assigned document number 026139310, be approved subject to the following alterations to the Scheme:
(a) inserting the words “11 October” before the reference to “2010” in the “Date” of the Scheme on page 1;
(b) inserting the words “(as amended by a deed poll executed by AGL dated 6 October 2010” after the words “Scheme Shareholder)” in the definition of “Deed Poll” in clause 1.1 of the Scheme;
(c) inserting the words “(as amended by an Amendment Deed dated 18 August 2010)” after the words “between AGL and Mosaic” in the definition of “Scheme Implementation Deed” in clause 1.1 of the Scheme;
(d) replacing the words “[insert date]” with the date “7 October 2010” in clause 2.1(b) of the Scheme;
(e) replacing the number “[821,710,775]” with the number “866,910,755” in clause 2.1(b)(i) of the Scheme;
(f) replacing the number “[19,235,000]” with the number “19,035,000” in clause 2.1(b)(ii) of the Scheme;
(g) deleting the symbols “[“ and “]”in clause 2.1(b)(iii) of the Scheme;
(h) inserting a space after the words “paragraph (a)” in clause 5.3(b) of the Scheme;
(i) deleting the second full-stop appearing at the end of clause 5.7(b) of the Scheme;and
(j) replacing the word “Securities” with the word “Shares” in clause 5.7(d) of the Scheme;
so that the Scheme as altered and approved is in the form of Annexure “B” to these Orders.
3. Pursuant to s 411(12) of the Act, Mosaic be exempted from compliance with s 411(11) of the Act.
4. These orders be entered forthwith.
In these orders, an “Excluded Shareholder” is any Mosaic Shareholder who is a member of the AGL Group, meaning AGL Energy Limited and each of its subsidiaries.
ANNEXURE A
The Deed Poll is amended as follows:
1. inserting the words “and, subject to clause 2, to perform its obligations under the Scheme” after the words “terms of the Scheme” in clause 3.1(a) of the Deed Poll.
ANNEXURE B
Note:
Background
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Evidence Before The Court
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