FEDERAL COURT OF AUSTRALIA
Newcrest Mining Limited, in the matter of Newcrest Mining Limited [2023] FCA 1080
File number: VID 624 of 2023 Judgment of: BEACH J Date of judgment: 7 September 2023 Date of publication of reasons: 11 September 2023 Catchwords: CORPORATIONS – scheme of arrangement – scheme concerning shares – s 411(1) of the Corporations Act 2001 (Cth) – first court hearing – orders for convening a meeting of shareholders Legislation: Corporations Act 2001 (Cth) ss 411, 412 and 1319
Corporations Regulations 2001 (Cth) sch 8
Securities Act of 1933 (US) s 3(a)(10)
ASIC Regulatory Guide 111: Content of expert reports
Cases cited: Re Amcor Ltd [2019] FCA 346
Re Amcor Ltd (No 2) [2019] FCA 842
Re Ardent Leisure Ltd [2018] NSWSC 1990
Re Atlantic Gold NL (No 2) [2014] FCA 869
Re Beadell Resources Ltd (2018) 133 ACSR 600
Re Blackmores Ltd [2023] FCA 624
Re Ellerston Global Investments Limited [2020] NSWSC 1108
Re Foundation Healthcare Ltd (2002) 42 ACSR 252
Re Oz Minerals Limited [2023] FCA 197
Re RXP Services Ltd [2021] FCA 38
Re Vita Group Ltd (2023) 165 ACSR 576
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 75 Date of hearing: 7 September 2023 Counsel for the Plaintiff: Mr P Crutchfield KC, Mr B Holmes and Ms E Brumby Solicitor for the Plaintiff: Herbert Smith Freehills Counsel for Newmont Corporation and Newmont Overseas Holdings Pty Ltd: Mr N Young KC and Mr K Loxley Solicitor for Newmont Corporation and Newmont Overseas Holdings Pty Ltd: King & Wood Mallesons
ORDERS
VID 624 of 2023 IN THE MATTER OF NEWCREST MINING LIMITED
BETWEEN: NEWCREST MINING LIMITED ACN 005 683 625
Plaintiff
ORDER MADE BY:
BEACH J
DATE OF ORDER:
7 SEPTEMBER 2023
OTHER MATTERS:
A.The Court notes that the Australian Securities and Investments Commission was provided with at least 14 days’ notice of the hearing of this application.
B. The Court is satisfied that ASIC has had a reasonable opportunity to:
(a)examine the terms of the proposed scheme of arrangement to which the application relates and a draft explanatory statement relating to that arrangement; and
(b)make submissions to the Court in relation to the proposed scheme of arrangement and the draft explanatory statement.
C.The Court notes the letter from ASIC to the directors of the Plaintiff dated 6 September 2023 produced at the hearing.
THE COURT ORDERS THAT:
1.Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (the Act) the Plaintiff (Newcrest) convene and hold a meeting (Scheme Meeting) of its members holding fully paid ordinary shares (Newcrest Shareholders):
(a)for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement (Scheme) proposed to be entered into between Newcrest and the Newcrest Shareholders, the terms of which are set out in Annexure A to these orders; and
(b)to be held on 13 October 2023 commencing at 10:30 am (Melbourne time) and to…
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- AGLC
- Re Newcrest Mining Ltd [2023] FCA 1080
- Case
- [2023] FCA 1080
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to grant Newcrest's application for orders to convene a meeting of its shareholders to consider the proposed scheme of arrangement. This involved ensuring compliance with statutory requirements, particularly under section 411(1) of the Corporations Act, which mandates the convening of a shareholder meeting for the purpose of considering a scheme of arrangement. Additionally, the court had to consider how to appropriately communicate with shareholders, particularly those who have opted for electronic communications, and those who have not made any election regarding the form of communication.
The court found that the application met the statutory requirements and granted the orders to convene the meeting. Justice Beach highlighted that the explanatory statement, which forms part of the scheme booklet, did not need to be approved by the court as it must be registered by the Australian Securities and Investments Commission (ASIC) regardless. The court also addressed the procedural fairness required in notifying shareholders, ensuring that all shareholders were given adequate notice and information regarding the meeting and the scheme. Orders were made to facilitate the communication with shareholders, including those who preferred electronic communications and those who had not made any election.
In conclusion, the court issued detailed orders convening the scheme meeting, detailing the process for communication with shareholders, the conduct of the meeting, and the handling of proxies. The orders also included provisions for the adjournment of the proceedings to allow for any opposition to the scheme to be heard.
Orders
Orders of the court
1. Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (the Act) the Plaintiff (Newcrest) convene and hold a meeting (Scheme Meeting) of its members holding fully paid ordinary shares (Newcrest Shareholders):
(a) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement (Scheme) proposed to be entered into between Newcrest and the Newcrest Shareholders, the terms of which are set out in Annexure A to these orders; and
(b) to be held on 13 October 2023 commencing at 10:30 am (Melbourne time) and to be conducted both in-person at the RACV City Club, 501 Bourke Street, Melbourne, Victoria 3000 and virtually via an online platform.
2. Peter Tomsett, or failing him, Vickki McFadden, be chairperson of the Scheme Meeting.
3. Voting on the resolution to agree to the Scheme is to be conducted by way of a poll.
4. Pursuant to subsection 411(1) and section 1319 of the Act, the Scheme Meeting be convened by sending on or before 14 September 2023 to each Newcrest Shareholder:
(a) in the case of Newcrest Shareholders who have elected to receive shareholder communications electronically (Email Shareholders), an email which includes access by an embedded link to an online portal or website where Email Shareholders may:
(i) access and download an electronic copy of a document substantially in the form which appears at Tab 3 of Exhibit CLH-1 to the affidavit of Claire Louise Hannon sworn on 6 September 2023 (Scheme Booklet);
(ii) access and download an electronic copy of the ‘Online Voting Guide’;
(iii) lodge their proxy for the Scheme Meeting and voting instructions online; and
(iv) access the online platform to listen to and participate in the Scheme Meeting;
(b) in the case of Newcrest Shareholders who have elected to receive hard copy communications (Electing Postal Shareholders) and whose registered address is in Australia, the following documents by pre-paid post addressed to the relevant addresses recorded in Newcrest’s register:
(i) a printed copy of the Scheme Booklet;
(ii) a personalised Proxy Form; and
(iii) a reply-paid envelope for the return of that Newcrest Shareholder’s Proxy Form;
(c) in the case of Newcrest Shareholders who have not elected to receive electronic or hard copy communications (Non Electing Postal Shareholders) and whose registered address is in Australia, a letter in respect of the Scheme Meeting by pre-paid post addressed to the relevant addresses recorded in Newcrest’s register of members (Non Electing Postal Shareholder Letter), which contains the address of a website which enables Non Electing Postal Shareholders to:
(i) access and download an electronic copy of the Scheme Booklet;
(ii) access and download an electronic copy of the ‘Online Voting Guide’;
(iii) lodge their proxy for the Scheme Meeting and voting instructions online; and
(iv) access the online platform to listen to and participate in the Scheme Meeting; and
(d) in the case of Electing Postal Shareholders and Non Electing Postal Shareholders whose registered address is outside Australia, the following documents by pre-paid airmail post addressed to the relevant addresses recorded in Newcrest’s register of members:
(i) for Non Electing Postal Shareholders, a Non Electing Postal Shareholder Letter;
(ii) for Electing Postal Shareholders, a printed copy of the Scheme Booklet, a personalised Proxy Form and a reply-paid envelope for the return of that Newcrest Shareholder’s Proxy Form.
(e) in the case of Newcrest Shareholders on the Canadian Register, a physical Notice of Access letter to their registered address on the Canadian Register accompanied by a Proxy and Voting Form, unless they have made (or do make) an election for documents to be sent to them in either physical or electronic form in which case they are to be sent the material specified in sub-paragraph (a) or sub-paragraph (b) (as the case may be).
5. A proxy in respect of the Scheme Meeting will be valid and effective if, and only if, it is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions on the online portal or website referred to in orders 4(a) and (c) and received by Newcrest by 10.30 am (Melbourne time) on 11 October 2023.
6. Subject to these orders, Newcrest shall have power to postpone the Scheme Meeting to such time, date and place as it considers appropriate and, in that event, notwithstanding any other part of these orders:
(a) only Newcrest Shareholders whose names are recorded in the register of members of Newcrest at 7:00 pm (Melbourne time) on the date that is two calendar days before the date of the postponed meeting will be eligible to vote at the Scheme Meeting;
(b) a proxy in respect of the Scheme Meeting will be valid and effective if a Proxy Form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions set out in orders 4(a) and (c) at least 48 hours before the time scheduled for the postponed meeting;
(c) and a reference in these orders to the Scheme Meeting is taken to include a reference to the postponed meeting.
7. Pursuant to r 1.3 of the Federal Court (Corporations) Rules 2000 (Cth), compliance with rr 2.15, 3.2(b)(ii), 3.4 and Form 6 is dispensed with.
8. By no later than 10 October 2023 Newcrest is to publish an announcement via the ASX Market Announcements Platform which sets out the details for the second court hearing and the process for any person wishing to appear at that hearing to oppose the approval of the Scheme, together with an address for service of Newcrest.
9. The proceedings be adjourned to 10:15 am (Melbourne time) on 17 October 2023 before Justice Beach for the hearing of any application to approve the Scheme.
10. Newcrest be granted liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE A
Scheme of Arrangement
[The order entered is available on the Commonwealth Courts Portal, which attaches the Scheme]
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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